Citation
The myth of social service planning

Material Information

Title:
The myth of social service planning a case study
Creator:
Legatsky, Patricia
Publication Date:
Language:
English
Physical Description:
160 leaves : ; 28 cm

Subjects

Subjects / Keywords:
Mentally ill -- Care -- History ( lcsh )
Mentally ill -- Care -- Case studies -- Colorado -- Denver ( lcsh )
Mentally ill -- Care ( fast )
Colorado -- Denver ( fast )
Genre:
Case studies. ( fast )
History. ( fast )
bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )
Case studies ( fast )
History ( fast )

Notes

Bibliography:
Includes bibliographical references.
General Note:
Submitted in partial fulfillment of the requirements for the degree, Master of Planning and Community Development, College of Design and Planning.
Statement of Responsibility:
by Patricia Legatski.

Record Information

Source Institution:
University of Colorado Denver
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Auraria Library
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
15535156 ( OCLC )
ocm15535156
Classification:
LD1190.A78 1985 .L45 ( lcc )

Full Text
THE MYTH OF SOCIAL SERVICE PLANNING:
by Patricia Legatski
A CASE STUDY
In Partial Fulfillment of the Requirements For The Master in Planning and Community Development Degree For the College of Design and Planning The University of Colorado at Denver December 20, 1985
Thesis Committee: Daniel J. Schler
Herbert H. Smith Michael Pharo


INTRODUCTION
My focus in the field of planning has been social services, and my special interest has been mental health. In early 1981, when I was first considering a topic for my thesis, major cutbacks in federal funding to mental health programs were made. It was estimated that a minimum of one third of ail the public sector mental health positions in the Denver metropolitan area had been eliminated as a direct result o~ these cuts, and my thesis was going to examine the consequent impacts on mental health programs and service delivery. I would focus on the chronically mentally ill, a population that has been found throughout history and in all cultures and societies, in order to focus my study in an area that would provide some historical perspective.
My original idea was to do a review of the literature and then interview people the planners and administrators, the direct care providers, chronically mentally ill persons themselves, and others who would he affected by the cutbacks, directly or indirectly. I don't know if I was aware of the assumptions I was laboring under first, that the cutbacks would cause dislocations and turmoil throughout the entire system and, second, adjustments would be made, probably by cutting "elective" mentai health services even further and shifting funds to programs for the most serious and dysfunctional o the system's clients, including the chronically mentally ill. An even more problematic


assumption on my part was that funds would be found somewhere, especially as some of the most important programs are cost-effective for society as a whole.
On June 1, 1981, programs and services for the chronically mentally ill were eliminated or reduced and as a result, a class action suit was filed on behalf of chronically mentally ill persons against the City and County of Denver and the State of Colorado. And almost no one would talk to me because of the suit.
I was deeply committed to the topic and the issues involved in it, so I decided to use the trial as a case study in social service planning. What has emerged is a case study in the lack o' social service planning in this country.
The material is organized as follows:
Section I, History, is an overview o the treatment o' the chronically mentally ill in the United States from colonial times to the present.
Section II, The Trial, presents the issues from the points of view of those involved. The integrity of this thesis is based on my beliei' that I could accurately and empathically convey all the various views, and 1 believe I have done so. This section was written before the Judge rendered his decision, so the outcome of the trial did not bias my presentation.
Section 111, 1981-1984, contains material from personal
interviews and news stories. It provides a more immediate perspective than Section I, as it focuses on Denver and


Colorado.
Section IV, The Decision, gives the Judge's decision in the case.
Section V contains Conclusions and Recommendations, ana it draws examples from social services other than mental health in order to provide a more complete picture.


CONTENTS
Section I
History......................................... 1
Notes.............................................. 38
References. .............................. 39
Section II
The Trial.......................................... 42
Prologue....................................... 43
The Plaintiffs' Case........................... 47
The Defendants' Case:
Municipal Defendants...................... 83
State Defendants.......................... 88
Closing Arguments:
Plaintiffs................................ 74
Municipal Defendants...................... 83
State Defendants ......................... 98
Notes............................................ 103
References..................................... 114
Section III
1981-1984.......................................... 118
References........................................... 128
Section IV
The Decision....................................... 128
Notes.............................................. 143
Section V
Conclusions and Recommendations.................... 14b


Section I
HISTORY


The history of the chronically mentally ill is one of abuse and neglect punctuated by periodic reforms that ultimately have merely provided short respites from the ongoing maltreatment. It is also a history that is inexorably woven into the socioeconomic and philosophical milieu of the rest of the society.
In colonial America, the mentally ill were to be found in a variety of settings: "Their own or relatives' homes, physicians' homes, jails, work-houses, almshouses or poorhouses, wandering freely about. Cor in] areas near their homes, where they had been 'dumped'" .
In the various institutions in which they were held,
they were often subjected to brutality and degradation:
fees charged to visitors who came to tease the "crazy"
people---"a raree show"; "legg
irons" and "madd-shirts"; windowless vaults six feet square; for sleeping, wet straw tossed on an iron frame; cold of such degree as to coat inside walls with frost; chains ... seventeen unrelieved years in at least one reported case; being bound to a tree in a public square and striped till he waxed weary".
One pauper was...sold at auction and kept in an outhouse until his feet were frozen leaving only stumps; he was then chained lest he crawl away. <3,pp.10-11)
The treatment accorded the mentally ill was due, in part, to misconceptions about them----that they were
X


impervious to heat and cold, and that shocks, starvation, or other forms of abuse might, in fact, help ameliorate their distress (1,3). The attitude toward the mentally ill held by society, which underscored their treatment, was based on the theology of the times (4). Mental illness was seen, for the most part, as possession or sin, not illness.
The evolution of mental illness from a theological problem to a scientific or medical one was facilitated, in large part, by Benjamin Rush (1,3,4). Rush was a member of the Continental Congress and signer of the Declaration of Independence, Physician General of the Continental Army, Treasurer of the United States Mint, Professor of Physic and Dean of the Medical School at the University of Pennsylvania, and the acknowledged father of American psychiatry. In the raid-18th century, there had been movement toward systematizing the care of the mentally ill by establishing institutions specifically intended for them (e.g., Pennsylvania Hospital's separate unit for the mentally ill in 1752, and the Williamsburg Asylum, modeled on Bedlam Hospital in England, in 1773), but it was Rush, who, because of his positions, associations, and writings, was "able to
implement his ideas on mental illness" (4,p.l39)----the idea
that mental illness had an organic basis.
In the early 1800's, moral treatment or moral management of the mentally ill, inspired by Pinel's striking off the chains of the inmates in two Parisian madhouses and Tuke's founding of the York retreat in England (1,5,6), was seen as
3


the answer to the problem of the chronically mentally ill.
Moral management called for humane treatment, kindness, open
wards, pleasant structured activity, and, above all, a
familiar, if not parental, relationship between
superintendent and patients, which included joint dining,
walks in the countryside, etc.** (l,p.lb). It was
treatment by a humane, competent, and well-trained staff who tried to teach the patient to lead a prudent and regularized life in harmony with natural laws....Important factors in Cits] success were a belief that insanity was curable, the avoidance of overcrowding, and a limitation on the number of chronic patients.
<6,p.56)
Several American institutions were founded (Friends
Hospital, the Hartfort Retreat, and McLean Hospital) based on
the philosophy of moral treatment, and encouraged by its
reported success (1,5).
The high rates of recovery claimed for the small, moral-treatment institutions, in which patients of independent means were seen daily by the superintending physician, produced a "cult of curability'* that helped to launch the state mental hospital movement in the United States. (5,p.487)
These high cure rates were variously reported as from 40* to 100X (1).
In the midst of the enthusiasm for moral treatment Dorathea Dix began her campaign for the mentally ill. Many of the mentally ill were in jails and poorhouses, and Dix started her crusade by exposing "the use of iron chains and
V


shackles, the foul atmosphere, and Inhuman conditions found in facilities housing the mentally ill" . When she started in 1841, the United States had only 18 public and private hospitals for the care of the mentally ill <5>.
While individual states (especially New York and Massachusetts) had funded mental hospitals in the late 18th and early 19th centuries, Dix was the first to propose them for all states; she argued (as Horace Mann had in 1882) that the mentally ill should be made wards o~ the state, since the burden of their care was too much for local communities (1,5).
The Dix-Mann Doctrine was fully epitomized by the New York State Care Act of 1890, which "provided for removal of all the insane from local poorhouses and jails to state hospitals, where they were to be supported and treated at state expense, and it required each state hospital to admit all cases of insanity in its district, regardless of prognosis" (5,p.487). "By 1850, almost all of the northeastern and midwestern states supported her concept of the state-funded mental hospital, and by 1860 28 of 33 states had at least one public mental hospital" (l,p.l7).
Dorathea Dix is credited with the building or enlarging of mental hospitals in 20 states, along with a dozen hospitals in Europe. In 1848 she began lobbying Congress to appropriate 10 million acres of public land for the indigent insane (a proposal similar in concept to the donation of land for land grant colleges), and in 1851 Congress passed the
5


bill, only to have it vetoed by President Pierce (3).
The state hospitals that Dix sought were intended to provide moral treatment, but hospitals were built large, not small, for economies of scale and efficient organization (1). These large hospitals (both those that were designed to be big and those that grew large because of the pressure of increasing numbers of patients) could not duplicate the personal qualities that had been a cornerstone of moral treatment. "Within these large complexes with their large
populations, one of the features of moral treatment----the
emphasis on quiet, silence, orderliness, and regular routines... became perverted into regimentation, control, and the maintenance of the status quo" . They became impersonal and inhumane institutions where "patient's behavior was controlled with physical restraints and seclusion" (5,p.488).
Even the location of the hospitals became problematic. "The facilities established were designed to provide asylum and were located outside large population centers. In the long run this very isolation proved to be detrimental. Likewise, restrictions on mail, family visitation, and social contact with members of the patients' home communities furthered the isolation, originally felt necessary to hasten recovery from the stresses of 19th-century American life" (l,pp.17-18).
The decline of the concept of moral treatment as a panacea for the mentally ill was a result of factors that


were built into the system itself, as well as societal factors that impinged on it. Overcrowding and the resultant decline in conditions in the hospitals meant that patients were not receiving the effective treatment that would allow them to return to the community, thus keeping the patient population at an ever increasing level (1,6).
While private hospitals could often choose their patients, state hospitals did not have this option (1,6), thus they "tended to receive the most difficult, intractable, violent, and chronic patients" (l,p.l8). The states often did not increase the financial support of their hospitals commensurate with increasing patient populations, thus causing a decline in services, staffing, and conditions (1,6). "Attempts to reduce patient census by discharging recovered or improved patients were often thwarted for socioeconomic reasons. With no provision for aftercare, discharged patients often spent the rest of their lives in the local poorhouse....If the state legislature decided to build a new asylum to relieve overcrowding, it was quickly filled to capacity by the ever-increasing chronic patient population" (6,p.59).
The major influx of immigrants to the United States in the late 1800's was followed by a major influx of indigent foreigners to the state mental hospital systems. This led to a cultural, social, and ethnic disparity between staff and patients, which resulted in distance and lack of understanding between the two groups (1,3,6). During this
5*


period, American society was becoming less inclined toward reform, more conservative and materialistic, and influenced by concepts of Social Darwinism (1,6). At the core of the philosophy of Social Darwinism, as presented by Herbert Spencer was
the generalization that social or institutional evolution is part and parcel of cosmic evolution as a whole, and hence cannot be successfully controlled by artificial human intervention and guidance. (7,p.797).
Social Darwinism justified the neglect of adequate programs for the mentally ill on the basis that it would be neither effective nor appropriate to tamper with the nature of thing (1,6).
Social Darwinism was the translation of evolution and degeneracy into societal terms (and] its relevance to psychiatry was its implication that mental disease and the lower classes were intertwined casually and the focus of psychiatric treatment should be the prevention of propagation by these inferior groups. (l,p.20)
The turn of the century marked a major shift in the course of the mental health movement (1,3,5,6). In 1908, Clifford Beers published his own account of his hospitalization as a mental patient in A Hind That Found Itself. He began a reform movement that developed into the National Committee for Mental Hygiene. In response to changes in society at this time, there was a groundswell of reform activity that produced legislation to protect women


and children, efforts to eliminate slums and insure minimally adequate housing for the poor, and a movement toward a greater implementation of public health principles, especially primary prevention. Beers and his Committee were a part of this movement of reform. Talbot <1) says of Beers, "He was to have probably the most profound effect o all on the delivery of mental health services in twentieth century America" (p.21).
Stressing prevention, the Committee turned its efforts to support of child-guidance clinics. The Committee also served to sensitize the public to the plight of the mentally ill, as well as promoting research and training in psychiatry <1,3,5,6). In spite of this, there was no significant reform of mental hospitals as a result of the Committee's work (1,6).
The early part of this century also saw the development of psychopathic hospitals, usually associated with a university or general hospital (1,3,5). The name was to clarify that they were not traditional mental hospitals or asylums. They "were modeled on German institutions and stressed short-term observation, evaluation, and treatment of acute illness. They referred their more chronic and intractable patients [to] 'longer-stay' facilities (e.g., state hospitals)" (p.21).
Thomas Salmon, who had been the first medical director of the National Committee for Mental Hygiene, published data during World War I that showed significant differences in the


rates of continuing mental disability between French and British troops that were directly related to the treatment they had initially received (1,3). The French troops were treated virtually at the front and returned to duty as soon as possible, while the British troops were evacuated to be treated elsewhere. The French troops had much less residual psychiatric disability than did the British (1,3). From this he generated his "principles of proximity (treat them where they lie), immediacy (treat them quickly), and expectancy (expect prompt recovery) [that] became the foundation for crisis intervention, elimination of waiting-lists, and local, decentralized outpatient clinics" (l,p.22), all of which furthered the (ideological) move away from state mental hospitals.
During the period between the World Wars, there was a renewed interest in the organic cause of mental illness prompted by the discovery of the spirochete in 1913 (1,3).
And "with the development of the convulsive therapies in the mid and late 1930'a, state hospitals at last had a form of treatment that was easily delivered and markedly effective for certain diagnostic entities (l,p.22;3,6).
The migration of many psychiatrists from Nazi Germany in the 1930'a, had several major impacts on the field of mental health. Sigmund Freud had profoundly affected the conceptualization of the role of psychiatrists "as that of a psychotherapist who helps the patient to struggle against his disordered functioning, rather than that of a doctor who
/o


diagnoses it and prescribes treatment" (5,p.489). He had also promoted the concept of psychiatrists charging fees for their time, skills, and expertise, which enabled office psychiatry to be put on a commercial basis. Many of the immigrating psychiatrists had been private practitioners, and they were absorbed into the departments of psychiatry at (many) medical schools. This melding of university affiliation and private practice enabled psychiatrists to pursue careers unconnected with state mental hospitals (4).
During World War 11, the process of inducting civilians into the armed forces revealed a startling amount of mental disability in the inductees (1,3,5,6), and discharges for psychiatric reasons at one time were reported to be higher than total number of inductions (1,2,5). A large number of American physicians had experience treating combat reactions. Initially, Salmon's lessons from World War 1 were forgotten. When they were "relearned**, great numbers of medical personnel were made aware "of the effectiveness of shortterm, goal-oriented, positive-thinking, crisis-oriented
treatment approaches---which in turn resulted in lowered
rates of residual symptoms" (l,p.25).
Conscientious objectors, working in mental hospitals as an alternative to military duty, "provided material for exposes of the poor conditions existing in many of them"
(5,p.489). Deutsch (2), in reviewing over two dozen state hospitals, mainly in wealthy states, found "scenes that rivaled the horrors of the Nazi concentration camps----
//


hundreds of naked mental patients herded into huge, barnlike, filth-infested wards, in all degrees of deterioration, untended and untreated, stripped of every vestige of human
decency, many in stages of semistarvation*' (p.449).
- ....................
The response to ail this was the passage of the National Mental Health Act of 1946, which created the National Institute of Mental Health (NIMH). NIMH was empowered to provide monies for research, training, and formula grants-in-aid for states to develop community-based mental health services. To qualify to receive revenue under this act, states had to designate a mental health authority that would both receive the funds and also disperse them. Additionally, under the terms of this act none of the funds could be used for the care of mental hospital patients (1,5).
Congress believed that the community-based psychiatric
care that would be generated as a result of the act would
reduce use of mental hospitals.
The Senate Committee on Education and Labor reported: "Mental Outpatient clinics, conveniently located and offering facilities for early diagnosis and treatment, give every promise of being the most effective means at our disposal for combatting mental disease"
(6,p.204).
This position furthered the rise of the community mental health movement and the concomitant decline of state mental hospitals.
While various medications had been in use with patients with severe mental disorders, it wasn't until the 1950's that


truly effective pharmacological agents were developed
(1.6.9.10.11) . These antipsychotic drugs, with their immediate and significant impact on psychotic conditions, allowed patients who had been restrained, in seclusion, and under constant observation to function autonomously within the environment of the hospital. State mental hospital populations began to fall as the leas seriously disturbed were released into the community, to be maintained on drugs
(1.6.9.10.11) .
While advances in psychopharmacology were having significant effects on the treatment of the severely and chronically mentally ill, the immediate future of institutional psychiatric practice was to be shaped by the reports of the practical work that had been done in Great Britain over the preceding 20 years (1,5,6,10). Duncan MacMillan, T.P. Rees, and G. Bell, working in institutional settings before the introduction of effective psychotropic drugs, had had success in reducing hospital censuses and maintaining their patients in the community. They had opened their hospitals, taken their patients out of restraints, and allowed for no involuntary hospitalization. What developed was a pattern of intermittent hospitalizations for acute crises within the framework of relatively long periods in the community. Many hospitals in the U.S. began to use this model, but "this movement toward stgte^hgspitgl-based community care for the seriously mentally ill had little connection with the rapidly proliferating community-based


mental health services, which rarely served people with severe mental disorders who often needed inpatient care"
In addition to treatment modalities, researchers were beginning to look at other factors involved in mental illness. A major atudy by Hollingshead and Reddich (12) showed the effect of socioeconomic factors on mental health. In this atudy, they divided the population of New Haven Connecticut into five aocial classes: Claas I was the rich aristocrats; Claas II was the well-to-do professionals and executives; Claas III was the middle class; Class IV, workers with decent paying jobs; and Claas V was the poor. In looking at the rate of treated psychiatric illness per 100,000 population, they found:
Note that Class V had an incidence of almost three times as much treated psychiatric illness as the other four classes. They also found that in Classes I and II, 65X of those treated for psychiatric illnesses were treated for neuroses and 35* were treated for psychoses, while in Class V, 90X of those treated were for psychoses and only 10X for neurotic illness. There were also major differences found in the types of therapies and therapeutic settings used by the well-to-do (i.e., protracted, individual care with private psychiatrists), and the poor (non-talking therapies in institutional settings). The poor are five times more
Class I & II Class 111 Class IV Class V
556 per 100,000 538 per 100,000 642 per 100,000 1659 per 100,000


likely to receive organic therapies (including electroshock) instead of individual psychotherapy. It was Hoilingshead and Reddich's contention that mental illness does not cause poverty; rather, poverty is a significant factor in precipitating mental illness.
In 1955, Congress passed the Mental Health Study Act which created a Joint Commission on Mental Illness and Health (1,5,9). The Commission's final report, Action for Mental Health, published in 1961, recommended that: no more mental hospitals with over 1000 beds should be built; existing facilities of that size should care for the chronically mentally ill; a vast network of community clinics should be built, each serving a catchment area of 50,000 persons; state mental hospital programs should focus on active psychiatric treatment, aftercare, and rehabilitation, not merely custodial care. These recommendations were a compromise between the plans advocated by proponents of mental hospitals and those of advocates of preventative services. In the Commission's report, neither position was the sole focus of effort and money. But, according to Bertram Brown, the NIMH professionals who were consultants in implementing Action for Mental Health,
opposed the emphasis on upgrading the state mental hospital system to a therapeutic level. Believing that a more radical departure was
needed---something likely to cut
the rate of hospitalization----
NIMH personnel drafted legislation to create a system of community-based mental health


services apart from the state hospitals. Deeply concerned that the NIMH strategy would mainly enlarge the spectrum of psychiatric cases receiving attention, and would not have a constructive impact on the long-term management of the seriously mentally ill, [opponents of the NIMH strategy] tried to convince the federal government of the danger of undermining the stalling and budgetary position of the mental hospitals. The NIMH advocates won... <5,p.493)
The Community Mental Health Act (CMHC) of 1963 started to shift the focus away from the mental hospital system and toward that of community-based services (1,5,6,9,13). The Act included four service components that community programs needed in order to receive CMHC funding: inpatient services, 24-hour emergency services, partial hospital programs, and consultation and education programs. While most state hospitals could have developed the programs needed to receive CMHC funding, the first federal monies were allocated for the construction of new facilities in the community, and state hospitals were not eligible for these funds. Community mental health centers "which were touted as the eventual replacements of the state hospital system, paradoxically were not required to develop treatment programs for the chronically mentally ill...The focus was on providing psychiatric services to previously underserved and potentially disruptive populations and not to chronically disabled mental patients" (6,p.62).
Hospital Improvement Monies (HIP) and In-Service


Training (IT) Grants were to serve as "transition** funds for state mental hospitals. Under these programs, *a maximum of about $100,000 per institution per year [was allowable, which was] less than 10 percent of the funds authorized for community mental health centers, and less than 5 percent of a typical state mental hospital budget" (5,p.494).
Community mental health centers, as envisioned in the CMHC Act, could not take over the functions of the state mental hospitals vis-a-vis treating the chronically mentally ill. Further exacerbating the problems of the chronically mentally ill in receiving treatment was the expansion of Nedicade and Medicare benefits that would cover care of the mentally ill in skilled nursing facilities (SNF's) and intermediate care facilities (IFC's), but not for care in state hospitals (1,6,9,13). "This transfer of responsibility for long-term social care of patients to welfare agencies interfered with the ability of the hospital-based clinical team to provide long-term supervision and psychiatric care for patients in the community" (5,p.497).
Many authors date the beginning of the deinstitutionalization movement at 1955, when state mental hospital censuses first started to decline. The development of the newer, more effective psychotropic drugs, the shift in sources and patterns of financing, the legislative and judicial actions that impacted the treatment of the chronically mentally ill, and the movement toward community mental health services all triggered the de facto reality of


deinstitutionalization. But initially it was an unnamed movement, without a conceptual or programmatic basis (14).
There are numerous definitions of deinstitutionalization. One is, simply, the trend to move severely and chronically mentally ill persons into the community. Leona Bachroach (15) has called
deinstitutionalization "the eschewal, shunning, or avoidance of traditional institutional settings (particularly state hospitals) for the care of the mentally ill and the concurrent expansion of community-based facilities for the care of these individuals" . A more elaborate definition has been (given) by Bertram Brown, Former director of the NIMH:
The prevention of inappropriate mental hospital admissions through the provision of community alternatives for treatment; the release to the community of all institutional patients who have been given adequate preparation for such a change;...[and] the establishment and maintenance of community support systems for noninstitu-tionalized persons receiving mental health services in the community As the process of deinstitutionalization went on, an administrative rationale grew around it: it was part of the new treatment philosophy that emphasizes the community, not the institution; and treatment was more effective when facilities were small, decentralized, multipurposed, with multiple services, and proximate to patient's homes, families, and neighborhoods (1). There was also a potent


financial rationale for states to deinstitutionalize.
Medicaid would reimburse nursing homes for patient care, and
since Medicaid had federal funding, the daily cost for
patients was lower in nursing homes than in state mental
hospitals, which were totally state funded
(1,5,6,8,9,11,13,1b).
The deinstitutionalization policies leading to the dramatic reductions in state mental hospital censuses of the 1970's can be seen as a rapid acceleration of a trend to transfer financial responsibility for the chronically mentally ill patient from state mental health departments to the social welfare system. The present crisis of abandonment of the seriously mentally ill has arisen because no similar transfer of responsibility for their care and treatment has taken place.
(5,p.498).
Court decisions that insured the right of patients facing involuntary commitment to procedural safeguards (17,18), the right to treatment (19,20), the right to have the least drastic form of care (17), the right of the nondangerous individual to freedom (21), and the right to treatment in the least restrictive setting (22,23,24) ail gave a legal impetus to deinstitutionalization.
The right to treatment was first decreed for persons already institutionalized and then for people still in the community. In the OlConner (21) decision the Court held that states violate the Constitution when they confine a nondangerous person without at least providing treatment. It


left, open the possibi 1 ltiea that it would later hold that states cannot involuntarily confine a nondangerous person at all and or, conversely, that states must provide treatment even to ill persons considered dangerous" <25,pp.28-29).
In the Wyatt <21) case, the Court again held that patients had a constitutional right to treatment. The focus in this case was on determining what would "insure" treatment, in terms of an institution's staff, plant, and policies.
In the Shelton (22) case, the Court stated the principle of achieving the government's goals by employing the least restrictive means: "even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved" (22).
There have been serious problems with deinstitutionalization. Deinstitutionalizationi Out of Their Beds and Into the Streets (2b), a report commissioned by a union for government employees, asks "how to explain a national ngnpolicy on mental health that releases mental patients into community facilities that don't exist and protects their right to treatment by denying them publicly provided health services... Delnstltutionalizatlon, a lofty
idea, has become something very ugly----a cold methodology by
which government washes its hands of direct responsibility for the well-being of its most dependent citizens" (26).
In the ideology of the community health movement,


community care would save money <27;, former mental patients would be rehabilitated in the community <28), and, with community care, the mentally ill would be reintegrated into society (29). All of this arose out of an a priori belie! that mental hospitals are inherently restrictive and harmful to patients while community care is the obverse (5,30).
Arnhoff <27), in reviewing social policy toward mental illness, has looked at the issue of cost. "A compelling body of systematic evidence now exists to suggest that the actual cost-benefits of community-treatment (using cost in its broadest sense) are far less than its advocates proclaim, but that the consequences of indiscriminate community treatment may often have profound iatrogenic effects: in short, we may be producing more psychological and social disturbance than we correct" (p.1277).
Kohen and Paul (28), in reviewing proprietary, extended care placement for the chronically mentally ill, have shown that "aggressive placement of long-stay mental patients in
(these) facilities---for example, foster homes, nursing
homes, or other board-and-care facilities---accounts tor
nearly all of the reductions in the chronic population [in state mental hospitals]" (p 578). They go on to show that this type of placement has neither rehabilitated nor changed the functional status of the chronically mentally ill.
Avriam and Segal (29) investigated the social exclusion of the mentally ill. "In many cases where the mentally ill are in the community, they are socially excluded by


mechanisms that foster a docility (such aa overuae ol druga and the caretaker's economic incentive to maintain a atable reaident population rather than to encourage a higher level of functioning) or by forcea that encourage ghettoization (auch aa zoning lawa and local adminiatrative regulations"

Allen (30) attacka the aaaumption that community care is alwaya good, while hoapital care ia bad. Reporting that aome baaic human needa are aometimea not adequately met in community aettinga (e.g., food, aafety, cleaniineaa, and apace), ahe goea on to aay, "There are more people around me [in board and care homes) who are hallucinating...and being tormented by theae expenencea...than there ever were when I reaided in a large dormitory in a atate mental hoapital...It troublea me to aee them go on auffering day after day with apparently nothing being done about it"

The Homeless Mentally 111 (14), the work of the Task Force on the Homeless Mentally 111 of the American Psychiatric Association, was published in late 1984. While
not disputing Allen's (30) contentions that community care


was deleterious to some, they concluded that
deinstitutionalization in and of itself was not bad. Conceptually, care of the chronically mentally ill in the community is both clinically appropriate and economically feasible. The problem was not in the plan but in the execution of it. The original dumping of thousands of mental hospital patients into communities without the resources or programs to care for them has now been exacerbated by the states' admission diversion policies, in which "new" chronically mentally ill persons are never institutionalized, and thus may be diverted from the mental health care system altogether. This has affected the definition of chronicity in mental illness (which has both legal and programmatic consequences). The chronically mentally ill used to be defined in terms of their institutionalizations and their need for indefinite psychiatric services. Deinstitutionalization effectively dismantled our institutional system of care, so a new definition has evolved: "Severity and persistence of disability and dependency of indefinite duration" (14,p,13).
Societal ambivalence has also affected the care of the mentally ill. On the one hand, there is resistance to having the chronically mentally ill in the community. An (extreme) example of this was the "suggestion of a Fort Lauderdale, Florida, city commissioner that beach-area garbage cans be sprayed with kerosene in order to discourage homeless [and mentally ill] individuals from foraging for food...His


rationale, that 'the way to get rid of roaches or other vermin in the house is to get rid of their food supply'...was endorsed by the city's mayor" <14,p.l6). On the other hand, there is resistance to the idea of involuntary commitment seen as "societal norms that encourage freedom for the the mentally ill and define that freedom on the basis of individuals' consent to be placed in treatment
settings...CThe consequences of this view can be seen in the case of] Rebecca Smith, a 'bag lady' who...died of hypothermia in her home, a cardboard box on the streets of New York City. Ms. Smith had previously been a patient in a public mental hospital and had steadfastly rejected readmission. At the time of her death city officials were attempting to obtain a court order for her rehospitalization, but Ms. Smith wished to live independently on the streets"
(14,p.34) .
The fact that the problems of the mentally ill are of crisis proportions today is not due simply to deinstitutionalization and its subsequent programmatic failures. A contributing factor has been changing national demographics. In short, the 64 million "baby boomers" have come of age, and the proportion of the population with chronic mental illness has increased dramatically. There are simply more chronically mentally ill people, in both absolute and relative terms, than there have ever been before.
Prior to deinstitutionalization, patients were less exposed to their peers, and they did not have the opportunity


to emulate them. Outside the institutional setting, this is no longer the case. The "new", younger mentally ill, like their peers, tend to be mobile and to use addictive substances recreationally. Their mobility is not random.
They are attracted to certain desirable locations, which places a disproportionate share of the burden of their care on these places. The use of drugs and alcohol may increase the symptomology of the chronically mentally ill, alter their clinical course, and decrease the chances of their getting appropriate care.
While deinstitutionalization and demographics are prime factors, the increased visibility of the problem has to do with cultural changes over the last 20 years. Many of these people had lived on the edge of the counterculture, which had protected them. Their behavior was often seen as extreme manifestations of that culture, but with its demise, the same behavior is seen as obviously aberrant.
There are barriers to the care and treatment of the mentally ill in the community. What services there are, are often designed for the more highly functioning mentally ill, meaning that those who need services most are often barred from them. Additionally, the services needed by the most dysfunctional often do not even exist. Most services for the mentally ill are geographically based, and the fact that this population is both mobile and often living on the streets or with no permanent residence, allows many agencies and
jurisdictions to exclude them from programs and deny them


services because they don't meet residency requirements.
Further barriers to effective treatment are care givers' inappropriate expectations for the more severely disturbed of the chronically mentally ill and the extreme social distance between the two groups. (These are both factors in why services and programs are essentially designed for the more highly functioning.) These groups come from two very different worlds in terms of attitudes, beliefs, expectations, and goals, and the planners and providers of services and programs for the mentally ill, at the least, cannot truly comprehend these differences and what the programmatic consequences would mean and, worst, they may discount the validity of any world view but their own.
The Task Force's conclusions indicated that "an emphasis on homelessness per se deflects attention from the basic, underlying problem of the lack of a comprehensive support system for the severely and chronically mentally ill...Vital resources... have been lacking. They include adequate and integrated community programs for these individuals; an adequate number and range of community residential settings, with varying degrees of supervision and structure; a system of follow-up, monitoring, and responsibility for ensuring that services are provided to those unable to obtain them; and easy access to short-term and long-term inpatient care when indicated. The consequences of these gaps in essential resources have been disastrous" (14,p.3).
The Task Force's recommendations were: To address the


problems of the homeless mentally ill in America, a
comprehensive and integrated system of care for this
vulnerable population of the mentally ill, with designated
responsibility, with accountability, and with adequate fiscal
resources, must be established.
"1> Any attempt to address the problems of the homeless mentally ill must begin with provisions for meeting their basic needs: food, shelter, and clothing...
"2) An adequate number and ample range of graded, step-wise, supervised community housing settings must be established...
"3) Adequate, comprehensive, and accessible psychiatric and rehabilitative services must be available, and must be assertively provided through outreach services when necessary...
"4> General medical assessment and care must be available.
"5) Crisis services must be available and accessible...
6) A system tor the responsibility lor the chronically mentally living in the community must be established, with the goal of ensuring that uitimateiy each patient has one person responsible for his or her care...
"7) Basic changes must be made in legal and administrative procedures to ensure continuing community care for the chronically mentally ill...
*8) A system of coordination among funding sources and implementation agencies must be established...
"9> An adequate number of professionals and paraprofessionals must be trained for community care of the chronically ill...
"10) General social services must be provided...
"ID Ongoing asylum and sanctuary should be available for that small proportion of the chronically mentally ill who do not respond to current methods of treatment and rehabilitation...


"12) Research into the causes and treatment of both chronic mental illness and homelessness needs to be expanded...
"13) More accurate epidemiological data need to be gathered and analyzed...
"14) Finally, additional monies must be expended for longer-term solutions for the homeless mentally ill <14,pp.5-10).
Senate hearings on the institutionally mentally disabled
were held April 1-3, 19S5. Institutionalized care is an
issue since state mental hospital admissions are rising, in large part because of the absolute increase in the numbers of
mentally ill people. "At a time when outpatient alternatives
are overburdened and underfunded, the stage is set for a new
era of institutionalization" (31,p.b).
In visits to 31 state facilities, the Senate staff found
the environment essentially the same:
Walking through a series of locked doors onto any of several adult psychiatric wards, the odor of cigarette smoke is pervasive and the stench of urine is often present, as is the television noise from a morning game show, afternoon soap opera or evening sitcom. A new visitor is quickly surrounded by a group of patients with the ever-present questions: 'Are you a lawyer? Can you get my doctor? Can you get me out of here? Do you have a cigarette?'
Other patients shuffle away from the commotion, across a dayroom where patients and staff spend most of their days and evenings.
Most patients sit or lay quietly on available surfaces: furniture, including tables, radiator shrouds, window sills and the floor.
Some sleep, some stare, others rock steadily in place or pick invisible nits from their hair.
Many patients look fleshy and unkempt, their clothing ill fitting and mismatched. Several talk to themselves, some try to draw others into their delusions forcefully, some protect


invisible space around them by cursing at fellow-patient intruders who pace the dayroom continuously end to end. Most sleep or sit quietly.
The glassed gazebo 3utting from a wall near the center of the room by a locked door leading to the dormitories, is a nurse's station. Inside, a nurse and/or aide is invariably filling out paperwork.
One wall of the station is papered with directives and policies from the facility administration and state central office.
Another has a locked cabinet of medications and shelf of thick notebooks, one for each patient on the ward.
Another staff person sits with patients at the television, identified only by the keys on his belt and occasional commands to the pacers to move from the line of vision. Another staff person may be the fourth in a gin rummy game with a group of the 'higher functioning' patients while at the same time, he consoles a patient with delusional fears who has pulled a chair up next to his.
If these four staff members are lucky, on a psychiatric ward they will have no more than 30 patients in their charge. If they are not, they may have 40 patients. Even in that former, relatively fortunate 7.S-1 ratio, any one of more than a dozen routine responsibilities can pull staff off regular ward work on a given shift, instantly shifting ratios to 10-1, 15-1, or worse.
Violence is considered a de facto feature of ward life in many facilities...Sustained physical abuse of patients/residents has occurred in some facilities and patient-to-patient aggression is considered common <31,pp.9-10).
The movement toward institutionalization has been facilitated by efforts to make involuntary commitment easier, the repeal of funding measures for patient advocacy, and the unavailability of outpatient care. The irony is that, "as underfunded community alternatives to hospitalization


continue to be unable to handle the problems of the mentally ill, so are the state facilities that were originally supposed to wither after deinstitutionalization was seen as the new alternative'* <31,p. 181).
State mental hospitals are underfunded, understaffed,
and, essentially, undersupervised. This sets the stage for
violence and abuse in these institutions. Some examples
given the Senate staff were:
Multiple assaults against patients, including slapping, punching, choking to the point of semi-consciousness, hair-pulling and throwing of patients; verbal threats of severe bodily injury; repeated verbal abuse (i.e. 'faggots, creeps, punks'); and excessive force when applying restraints...
[At] New Mexico State Hospital at Las Vegas:
"--An elderly woman died in July 1984 after part of a temperature-measuring device was allegedly left in her rectum by mistake, blocking her bowel movements; when it was finally removed, she went into shock and died shortly afterward. "--A 63-year-old woman died in February 1984 of 'pneumonia,' after threatening to commit suicide by self-induced vomiting. Before the fatal incident, she had been placed in seclusion in an unpadded room and had thrown herself against the walls. Upon viewing the body, her son said: 'It was real sloppy care. Mom had bruises ail over her face.'
"--In several cases, 'pneumonia' was listed as the cause of death of patients who allegedly had gastric tubes slip from their stomachs into their lungs due to negligent care. Other patients who died of 'pneumonia' had been left in cold rooms with windows open and inadequate bedcovers. In the words of one nurse: 'They are dying of exposure'...
A deaf-mute patient at Northville Regional Psychiatric Center in Michigan died, apparently strangled, while being restrained...In April 1981, a patient died while in a coma following an escape attempt. Several weeks earlier, the patient had been found in a Northville seclusion room, lying in a pool o~ blood...In July 1981,


a patient died while in a coma after being placed in seclusion... an autopsy concluded the cause of death was strangulation, noting throat marks and bruises 'indicating excessive force had been used in restraining the patient'...The state police has reportedly investigated more than 40 suspected rapes at Northville since 1981. One aide has been convicted of three rapes and jailed, but police say '99 percent' of the cases involve patient-to-patient contact...
A 35-year-old female patient in a locked, all-female ward at South Carolina State Hospital suffered a fatal seizure between 3 and 4 p.m. January 15, 1984. At the time of her death she had lain tied to a bed in full restraint for 13 hours and her clothing was soaked with her own urine.
An autopsy later revealed traces of substances found in semen in her vagina and pubic hairs that were not hers in her restraining suit. Technicians determined the patient may not have been given her regular anti-seizure medication while in restraint" (31,pp.17-24>.
There are many more Instances of patient abuse than are
reported or classified as such.
In some cases, serious injuries to patients have been sustained with no cause reported... At one state hospital in Georgia there were 50b patient injuries last year for which the cause was unknown. One hundred seventy-seven of these injuries required attention by the hospital Medical/Surgical unit...
Patient-to-patient assaults are a common cause of injury. At one state hospital in California 48 percent of all patient injuries were caused by aggressive acts between patients.
At two other hospitals visited, a third of ail injuries were caused by other patients (31,pp.43-44) .
Living conditions in many state hospitals are inadequate. Overcrowding; lack of privacy; lack of diversions (except for television); bathrooms that are dirty, lacking in privacy, with nonfunctional sinks and toilets, and
3/


sometimes without hot water, soap, or towels; room temperatures that were too hot in summer and too cold in winter to the point where the health of the patients was endangered; roach infestations; inappropriate, torn and soiled clothing; and poor food served in poor settings.
There is virtually no psychotherapy provided patients in state institutions. "Control appears to be the treatment goal, and medication is the chief method of achieving control" (31,p.ba). Restraint and seclusion are also used for control, and all of these have potentially serious side effects for the patients. An estimated 20 to 40 percent of patients taking neuroleptic drugs exhibit some form of Tardive Dyskinesia

, an involuntary, sometimes permanent, sometimes debilitating movement disorder" <31,p.70). With all the research and literature on TD, there has been no decrease in the use of neuroleptic drugs, nor has the required monitoring for aide effects mandated by the Office of Mental Health been complied with. Restraint and seclusion carry with them the potential for injury or even death.
The issue of the certification of state mental hospitals and their standards of clinical care is complicated. To receive federal funds, psychiatric hospitals must provide "active treatment" as required by the Social Security Act, but nowhere in the Act is "active treatment" defined. There are no minimally acceptable levels of care specified under the Act or in the implementing regulations, and it is very vague on what determines the criteria for certification to


receive funds. Nor is the time frame for correcting deficiencies spelled out (no hospital has ever lost funds for noncompliance).
State agencies are empowered to certify that mental hospitals in their state meet the requirements for receiving Medicare and Medicaid funds. There is a real concern that the states, with a vested interest in having certified hospitals that receive federal funds, are simply not doing the real 30b of certification and monitoring.
Many of the reforms in the care of the mentally ill and
much of the cessation of practices injurious to mentally ill
persons have resulted from litigation that was based in law
on issues of their civil rights, and the Justice Department
had played a significant role in establishing these rights.
Prior to C1980J, the Department of Justice participated in almost every major suit challenging conditions or violations of constitutional rights m mental institutions. Each case m which Justice had participated... had resulted in the court ordering immediate unconditional relief of conditions" <31,p.136).
One recent analysis of Justice Department activity in the field suggests that the Department is engaged in a concerted attempt to narrow the rights of the institutionally mentally disabled... The department's eagerness to change long-standing positions suggests a politicization of the litigation and enforcement processes that inevitably makes it a less credible participant in them (31,p.l4l).
Steve Whinston...a former attorney in the Special Litigation Section of the Department... pointed out that the Department has even changed its position in lawsuits in which it had been an amicus and [now] sought remedies which plaintiffs attorneys were unwilling to accept.
The whole orientation of the Justice Depart-
33


merit's litigation in this field has changed from enforcing the rights of the handicapped to establishing what are the limits of a state's obligations to the handicapped. The first question 1 was often asked under this Administration was "What can we do to support the defendants on this issue?"
"This greater concern for the state than the plaintiffs manifests itself not only in the substantive positions taken by the Justice Department but also in the litigation strategy it pursues. The most blatant example of this was [William Bradford] Reynolds' [Assistant Attorney General for Civil Rights] decision to exclude plaintiffs, on whose behalf the Department was supposedly litigating, from settlement negotiations...
"This overeagerness to settle, even to the extent of excluding plaintiffs from negotiations, is not a characteristic of an advocate. Rather, it demonstrates and illustrates the motivating concern of today's Justice Department -- to ease up on the states and to ease off on asserting the constitutional rights of the handicapped.
"Of course, this should not be. The handicapped are the most sympathetic and the least political of the Department's client groups.
To support the handicapped one need not refer to divisive factors of race, religion or income. Handicapping conditions cut across ail those lines. To support the handicapped one need not impose the federal government on anyone's private life. Recognizing the rights of the handicapped exalts the values of the individual above the authority of the state.
This should appeal to any administration, even a conservative one. But that has not been the case here. Their visceral ideological opposition to enforcing civil rights extend to all aspects of civil rights, even to the handicapped.
This attitude has been recognized in the field. The Justice Department, once a sought after ally of plaintiffs, is now shunned by plaintiffs. Its participation is no longer valued. Groups refuse to cooperate with Justice's investigations. In cases where Justice is already involved, plaintiffs employ tactics designed to keep Justice out of certain issues. In sum, the Justice Department under Mr. Reynolds has completely lost its credibility


as an advocate for the handicapped. in my view, this is aiso beginning to happen with the courts as well. Judges recognize that Justice's views are tainted by partisan ideology rather than distinguished by legal scholarship. This process will take many years to correct even after Mr. Reynolds' departure" 131,pp.147-150); lNote 13.
The homeless mentally ill are an increasing problem. It is estimated that:
- 95% of Boston's homeless are mentally ill.
- In Washington, D.C. there are between 5,000 and 10,000 homeless, and up to 50% of the men and 90% o the women are mentally ill.
- Over 50% of New York City's 50,000 homeless are mentally ill.
- Nationally, 33% or more of the 300,000 to two million homeless are mentally ill.
It was reported in December 1984 that Austin State Hospital was generating 24 homeless mentally ill a week by taking them to a bus station in Houston and leaving them there, with no money or provisions for food or housing. A security guard at the station would take them to a local mission. As this was happening, Texas was under a federal court order to increase the staffing at its eight mental hospitals, or release more people into the community.
Placement of the chronically mentally ill is often inappropriate and determined on the basis of the rules and regulations governing the funding of their care. Incentives to hospitalization are built into funding programs, causing inpatient services to be increasingly overburdened.
3$


"In Colorado, Senate staff spoke with two of the four persons at the Ft. Logan Mental Health Center who are unaer contempt of court citations for refusing the order of a state judge to admit a court-commxtted individual.
"The decision was a clinical one, the individuals said, and was made after a period of time where the high number of admissions of the facility had forced some patients to sleep on the floor" <31,pp.182-183).
Dr. Randall Stith, director of the Aurora Community Mental Health Center and director of the Colorado Centers and Clinics Association, on factors keeping demand for services high:
We just can't keep up with the sheer population growth, so that's one of the major reasons for the increase in demands tor services. The other reason -- and it's one we're working with other mental health centers to try and figure out -is that while the numbers are increasing for us proportionate to that rapid population growth, the severity is increasing of the client we do see and [they] are coming m there more seriously disturbed and that's a different issue and we're not real sure of what the elements of that are <31,p.184).
Many people believe that mental hospital populations will rise significantly in the future. Dr. Herzl Spiro has developed a set of variables that impact the numbers of mentally ill that will use state mental hospitals. "The variables he cites include the expected increase in major psychiatric disorders as the population increases and the so-called baby boom generation reaches the age of greatest risk for the disorders. Along with this increase is the decrease in less restrictive elements of the mental health system.
3&


such as emergency and outreach programs...[also] the rates of state hospital utilization rise curing periods of economic hardship and unemployment" (31,p.189).
The future is beginning. A special study panel appointed by the Texas Legislature "reported in January 1985 that the number of patients in state hospitals will jump 34 percent in the next five years barring major improvements in mental health services" l31,p.l90). In September o 1984 it was recommended that Massachussetts build six new inpatient facilities with a 1,000 bed capacity at a coat of Si!5 million. In 1978, NIMH found that, for the first time since the 1950s, state mental hospital admissions were greater than discharges.
The cycle begins again.


NOTES
On October 21, 1985, "NBC Nightly News with Tom Brokow" aired a report on the politicization of the post of Solicitor General of the United States. The Solicitor General has traditionally owed as much allegiance to the Court as to the President, but under Reagan "the Solicitor General is not a 'friend of the Court' but a mouthpiece for the right wing ideology of the Reagan Administration".
The cover story of the October 14, 1985 issue of UiSiNews & World Report was "Justice Under Reagan". Among other things the report said that "[Attorney General Meese) is trying to use the justice system as a tool for achieving the White House's social agenda" (p.58). It went on to quote Harvard University law Professor Alan Dershowitz as saying: This is the first administration in years that has come into office with an agenda to set back civil liberties" (p.58). Professor Dershowitz was also quoted as saying: "The Reagan Justice Department is hazardous to our constitutional health. Ed Meese is smart, and he has surrounded himself with brilliant, nice men with a radical mission to roil back our most fundamental constitutional protections, without looking reflectively at constitutionally embedded traditions" (p.65). Herman Schwartz, professor of law, American University was quoted: "Reagan is trying to win in court what he cannot win in Congress. All the talk about judicial restraint is hogwash. Presidents appoint judges who will rule in their favor. Few Presidents have tried to make the courts so ideologically rigid as Reagan has" (p.65). And Philip Kurland, professor of law. University of Chicago said: "Judges are being appointed in the expectation that they will rewrite laws and the Constitution to the Administration's liking. Reagan's judges are activists in support of conservative dogma..." (p.65).
Gest,T., Whitman,D., Kelly,0., & Work,C. with Gertler, E. Justice under Reagan. U_. 5.. News & World Report, 1985, 99, 58-65.


REFERENCES
1.
2.
3.
4.
5.
6.
7.
S.
9.
10.
11 12. 13.
Talbott, J.A. The death of the asylum. New York: Grune & Stratton, 1978.
Deutsch, A. The mentally ill in America! A history of their care and treatment from colonial times. New York: Columbia University Press, 1949.
Ridenour, N. Mental health in the United States.
Cambridge, Massachusetts: Harvard University Press, 1961.
Szasz, T.S. The manufacture of madness. New York: Harper & Row, 1970.
Gruenberg, E.M., & Archer, J. Abandonment of
responsibility for the seriously mentally ill.
Milbank Memorial Fund Quarterly, 1979, 57, 485-506.
Williams, O.H., Beilis, E.C., & Wellington, S.W.
Deinatitutionalization and social policy: Historical perspectives and present dilemmas. American Journal of Orthopsychiatry, 1980, 50, 54-64.
Buker, H., & Bains, H.E. Social thought from lore to
9!02i. General Accounting Office. Returning the mentally
disabled to the community! Government needs to do more (HRD-76-152). Washington, D.C.: Government Accounting Office, 1977.
Ewalt, J.R. The mental health movement, 1949-1979.
Milbank Memorial Fund Quarterly, 1979, 57, 507-631.
Kelerman, G.L. Better but not well: Social and ethical iaaueain the deinatitutionalization of the mentally ill. Schizophrenia Bulletin, 1977, 3, 617-631.
Talbott, J.A. Deinatitutionalization: Avoiding the disasters of the past. Hospital & Community ElXShiatry, 1979, 30, 621-624.
Hoi1ingshead, A.B., & Redlich, F.C. Social class and mental illness! A community study. New York: Wiley, 1958.
Rose, S.M. Deciphering deinatitutionalization:
Complexities in policy and program analysis. Milbank Memorial Fund Quarterly, 1979, 57, 429-460.


14
. Lamb, H.R.,ed. The homeless mentally ill- Washington,
D.C.: American Psychiatric Association, 1984.
15. Bachrach, L.L. A conceptual approach to deinstitution-
alization. Hospital and Community Psychiatry, 1978,
29, 573-578.
16. Clarke, G.J. In defense of delnstitutalization. Milbank
Memorial Fund Quarterly, 1979, 57, 461-479.
17. Lessgrd v. Schmidt, 349 F.Supp. 1078 (E.D.Wis. 1972).
18. Lynch Baxley, 386 F.Supp. 378 (M.D.Aia. 1974).
19. Rouse y^ Cameron, 373 F.2d 451 (D.C.Cir. 1966).
20. Wyatt vA Stickney, 344 F.Supp. 373 (M.D.Aia. 1972).
21. O'Cgnner Donaldson, 422 U.S. 563, 95 S.Ct. 2486(1975).
22. Shelton Tucker, 364 U.S. 479, 488(1960).
23. Lake Cameron, 364 F.2d. 657 (D.C.Cir. 196b).
24. Dixon Weinberger, 405 F.Supp. 974 (D.C.Cir. 1975).
25. Stein, L.I., & Test, M.A. Alternatives to mental hospital
treatment. New York: Plenum Press, 1978.
26. Santiestevan, H. Deinstitutionalizationl Out of their
beds and into the streets* Washington, D.C.: American Federation of State, County, and Municipal Employees, 1975.
27. Arnhoff, F. Social consequences of policy toward mental
illness. Science, 1975, 186, 1277-1281.
28. Kohen, W., & Paul, G.L. Current trends and recommended
changes in extended-care placement of mental patients: The Illinois system as a case in point. Schizophrenia Bulletin, 1976, 2, 575-594.
29. Aviram, U., & Segal, S.P. Exclusion of the mentally ill:
Reflection on an old problem m a new context.
Archives of General Psychiatry, 1973, 29, 126-131.
30. Allen, P. A consumer's view of California's mental health
system. Psychiatric Quaterly, 1974, 48, 1-13.
31. Staff report on the institutionalized mentally disabled,
requested by Senator Lowell P. Weicker, Jr. Prepared for Joint Hearings conducted by the Subcommittee on the Handicapped of the Committee on Labor and Human Resources and the Subcommittee on Labor, Health and


Section II
THE TRIAL INote 1]
Probate Court, City and County od Denver,
Case No. SI MH 270 Ruth Goebel, et al., Plaintiffs v.
City and County of Denver, et al. Defendants
District Court, City and County of Denver
Case No. SI CV 69S1 Jessie Arevalo, et al.. Plaintiffs v.
City and County of Denver, et al. Defendants
Colorado
Colorado


Prologue
On April 24, 1981, Denver Mayor William H. McNichols,
Jr. announced that -the Denver Department. of Health and Hoapitala would cut ten million dollara from ita annual operating coata effective June 1, 19S1 (1). The Community Carea Program's Outreach Team, Capital Hilla Activities Center, and the Bridge Workshop along with the Capital Hill Counseling Clinic, all serving the chronically mentally ill, were eliminated. On May 29, 19S1 a hearing was held on a Motion for a Temporary Restraining Order prohibiting the closing of these programs until such time as the matter could be adjudicated. It was denied on June 15, 1981. The denial of the Temporary restraining Order was appealed and the Order was subsequently granted.
On July 29, 1981, a letter was sent to Mayor McNichols providing formal notice that "unless [the] matter is quickly resolved through the restoration of the Community Cares Program and the Capital Hill Counseling Center or the establishment of a coordinated community support system for chronically mentally ill persons"(2) a class action suit would be brought against the City and County of Denver and the State of Colorado baaed on their failure to meet the constitutional, statutory, and common law rights of the chronically mentally ill to appropriate medical and mental health care designed to keep them in the least restrictive environment possible.
^3


Suit was brought
CLAIMS < 3)
Plaintiffs:
1. Plaintiffs and class members have a right to adequate, individualized treatment in the community ta,b,c,d,e).
2. All Defendants have discriminated against and continue to discriminate against Plaintiffs and class members (f).
3. Defendants have failed to provide Plaintiffs and class members with the adequate, individualized treatment in the community to which they are entitled as a matter of law.
Municipal Defendants:
1. The material allegations of the complaint are not true.
2. Municipal Defendants deny that Plaintiffs have a right to adequate, individualized treatment in the community under any constitutional, statutory, or regulatory theory. If any of those rights do exist. Municipal Defendants deny that they have violated those rights.
State Defendants:
1. The material allegations of the...
Complaint are not true.
2. The allegations contained in the... Complaint fail to state a claim upon which relief may be granted.
3. The actions complained of in this action were taken by an entity other than the State and were beyond the control of State Defendants.INote 23
4. The relief requested by Plaintiffs would violate the constitutional separation of powers between the legislative, executive and judicial branches of government.
5. State Defendants have fully complied with any and all duties imposed upon them
by the statutory and constitutional provisions


cited by Plaintiffs.
ISSUES OF FACT (3)
A number of "undisputed facts" were agreed on by all parties, and would not be at issue in the case [Note 3]. disputed issues of fact were:
1. Are plaintiffs and class members chronically mentally ill?
2. Without proper treatment, will plaintiffs and class members suffer persistent mental and emotional disorders which cause them
to be disoriented from and unable to cope with the activities of daily living, such as personal relationships, living arrangements, work and recreation?
3. How many chronically mentally class members Caici reside in the catchment area of the Department of Health and Hospitals?
4. How many of those class members have been previously hospitalized because of their mental condition?
5. Without community support services, how many of these class members will deteriorate physically and mentally?
6. Are the life histories of these individual plaintiffs aa [representedJ true?
7. Do chronically mentally ill persons require coordinated community support services to maintain them m the community and avoid deterioration of their mental condition which will force them in to more restrictive environments?
8. Is the Department of Health and Hospitals the designated mental health center responsible for the care of plaintiffs and clasa membera?
9. Does the Department of Health and Hospitals hold itself out as a community mental health center for mentally ill persons residing in the northwest portion of Denver county?
H5
The


10. Does the Department of Health and Hoapitala provide the community mental health services required by various constitutional, statutory, and regulatory requirements ?
11. Have the Department of Institutions
and its Director assured that the plaintiffs and class members are accorded their right to adequate individualized treatment in the community?
12. Have defendants discriminated against plaintiffs and class members (k>?
This case, Jessie Arevalo* et al* v. City and County of QQver* et al*, was filed in District Court at about the same time several individual cases were certified as a single class action in Probate Court (the Goebel case). These two cases were consolidated for hearing purposes with the Probate Court sitting in its normal capacity as a Mental Health Judge and also as duly-designated acting District Court Judge.
James R. Wade was Judge of the Probate Court during all the pre-trial filings, motions, and hearings. Judge Wade resigned in May of 1982, and Field C. Benton succeeded him as Probate Court Judge, and he presided over the trial.
The trial began on September 7, 1982.


The Plaintiffs' Case
Edmund Casper, M.D., Director Mental Health Program, City and County of Denver, as quoted in Perspective, Autumn 1981 (Plaintiffs' Exhibit 32):
The story of the chronically mentally ill is well known: How thousands of state hospital patients were returned to their community and how they wound up in rundown hotels and nursing and boarding homes, without adequate resources, treatment or care. They migrated to major cities because that's where the low income housing could be found and now they wander the streets of every city at a time when budget cutbacks in mental health are the order of the day. Here in Denver's Capitol Hill there are three to five thousand chronically mentally ill -- social recluses, living lonely and paranoid lives; they receive some help from social service agencies and little help from relatives, (p.b)
With today's inadequate mental health system m Colorado, many chronically mentally ill spend as much time or more in the criminal justice system -- courts, city and county jails --than they do in the mental health system. They are picked up for numerous offenses and spend days, weeks and months in courts and jail or getting psychiatric evaluations; if they are referred to mental health facilities they are given short treatment and released, only to have them return to jail in a few days. The Mental Health Program has suff ered extreme cutbacks in personnel and facilities, seriously reducing our ability to treat mental patients. (p.S)
It is my personal assessment that there will be a movement back towards the Institutionalization of the mentally ill because this will be the cheaper alternative, (p.b)


I believe that the solution to the problems of the chronically mentally ill is obvious and 1 and others have discussed the solution many times. The chronically mentally ill need a full spectrum of psychiatric, medical and social services, ranging from the least intensive outpatient care to the moat intensive inpatient care with gradations in the middle which include partial care set-ups for long and short days and a day hospital and an intermediate care facility where care can be provided 24-hours a day in a controlled environment, (p.4)
The Division of Mental Health of the Colorado Department of Institutions supervises the delivery of all public mental health services in the state. It licenses community mental health centers and contracts with them to provide mental health services for their catchment area. The Department of Institutions has enacted Rules and Regulations that govern the agencies from which it purchases services, and which contain comprehensive requirements for the delivery of those services. These Rules and Regulations provide for mental health services for those in need, with provisions for 24-hour care, day care and other partial care services, transitional halfway house services, follow up care after discharge from a mental health facility, vocational and rehabilitation services, affiliation agreements with other agencies providing required services, treatment be provided in the least restrictive manner, and when transferred to alternative treatment facilities, a treatment plan "which promotes the patient's safety, maximum level of functioning
and independent living" (2.19.2 of 2 C.C.R. 502-2) must be


developed.
The Denver Department of Health and Hospitals is licensed by the State as a community mental health center and is under contract to the Department o£ Institutions to provide mental health services to the northwest catchment area of Denver [Note 43, and is legally and contractually bound to the Rules and Regulations of the Department of Institutions. The requirements set orth by the state are not being met by the Department of Health and Hospitals, causing the condition of the plaintiffs to deteriorate or not improve. Specifically, Denver is noncompliant in the following ways:
1. Evaluation, care and treatment is not being provided in a non-discriminatory manner in the least restrictive setting possible.
2. A plan for continuing contact with and involvement of family members or the development or encouragement of other support systems is not formulated.
3. Physician visits and medical appraisal and treatment are often not obtained.
4. Discharge plans do not always include the provision of adequate transitional, aftercare and follow up services appropriate to the individual patient, calculated so as to maximally reduce the likelihood o rehospitalization or return to restrictive confinement.
5. There is often not the provision of adequate support services, including but not limited to housing, social services and vocational rehabilitation services, calculated to maximally reduce the likelihood of rehoapitalization or return to restrictive confinement.
6. A humane psychological and physical environment is not always assured for each patient.
7. Vocational rehabilitation is often not provided or arranged for all patients <4,pp.10-11).
At issue are the needs of the severely, critically, and
chronically mentally ill. Characteristics of this population


are: suffering from a ma]or mental illness, primarily schizophrenia, organic brain syndrome, and manic depressive illness, of long duration; being impoverished; often lacking family and friends; and, because of the nature of the illness, being unable to seek out treatment on their own.
The disorders suffered by this population are basically incurable, but they are treatable, and in some cases, controllable. Without treatment these people deteriorate as evidenced by increases in delusional thinking, acting out, and suicidal behavior; increased isolation; poor physical health; inability to care for one's basic physical needs; decreased psychosocial functioning; increased involvement with the criminal justice system; and even, ultimately, an untimely death" (4,p.l2).
In an effective program designed to treat the
chronically mentally ill the various elements----outreach, day
care, vocational rehabilitation, crisis intervention,
medications, and housing---would be coordinated and would
cover a range of options to meet each patient's individualized needs. Medications alone, while having the ability to reduce symptomology, are not, on their own, an effective means of enabling a patient to successfully live in the community.
In Denver, the existing treatment programs are inadequate. In terms of housing, the lack of adequate residential alternatives results in many of the chronically mentally ill being inappropriately hospitalized or jailed.
6o


being hospitalized for longer lengths of time than would otherwise be needed, or being forced into substandard housing, inappropriate settings, or onto the streets, all of which cause further deterioration in their condition.
The plaintiffs live in a variety of settings: boarding homes like La Bonte, Monarch Manor, Sauder's, The Other Place, and Carefree; nursing homes like Rocky Mountain Health Care Center and Ivy Manor <25X live in either boarding homes or nursing homes); 32-34 supervised apartments; independent residences, and 2K live on the streets. On a temporary basis, 15X are hospitalized, on Ward 4-W at Denver General Hospital; on Ward 18, the forensic unit of the Denver Department of Safety, located on the grounds of Denver General Hospital; at Fort Logan Mental Health Center; and 2% are in Denver's jails, City and County.
"Boarding homes, specifically including those in the northwest catchment area, are not therapeutic environments for the chronically mentally ill. They are physically run down, sterile environments which offer little in the way of stimulation for their residents. They are often dirty and dangerous" (4,p.l5).
Nursing homes, also, are not therapeutically suited for the chronically mentally ill, since most of the plaintiffs living in nursing homes do not suffer from any organic impairment which would necessitate such a placement. In spite of this, at one facility alone. Rocky Mountain Care Center, over 75 of the 104 patients are chronically mentally


ill. In fact, moat, of the chronically mentally ill in nursing homes in the northwest catchment area are capable of being treated in a less restrictive environment, but the services provided to these plaintiffs by the Department of Health and Hospitals are primarily custodial, and are ineffectual in preparing the patients for a move into a more appropriate setting.
In September of 19&2, the Department of Health and Hospitals opened a group home for the chronically mentally ill in the Capitol Hill area. It is capable of handling 10 to 15 people. Prior to this, no similar facility existed in the area. Funding for this home was provided by the State Department of Institutions and made available more than 10 months before the home was finally opened. Moat of the 3000 to 5000 chronically mentally ill in the northeast catchment area could successfully live in such a setting, and they would be able to increase their functioning, improve the quality of their lives, and decrease the possibility that they would be rehospitalized.
In addition to the 32-34 supervised apartments and the 10-15 beds at the group home. The Department of Health and Hospitals has 22 beds on Ward 4-W, their primary psychiatric inpatient facility, and a maximum of six beds are sometimes available on Ward 4-E, which is an alcoholic detoxification unit.
Increasingly, jail has become a residential placement for the chronically mentally ill, who tend to be jailed for
&


minor ordinance violations or status offenses related to
their ilineases and their poverty such as loitering,
trespass, or urinating in public. The 3ails are not equipped
to provide treatment to mentally ill inmates, their care is
mainly custodial. In Denver, mentally ill prisoners have
been found lashed to the wall in isolation and left naked in
isolation for days at a time. Psycnotics deteriorate to the
point where they have been found smearing feces on the walls.
Other prisoners are upset with the mentally ill m
their presence, and this puts additional strains on the
system. In Denver, about ax of the population in 3ail is
chronically mentally ill.
The lack of adequate placement facilities in the northwest catchment area results in a chronic backup problem in the entire mental health system: patients on Ward 4-W and at Fort Logan Mental Health Center have their stays increased significantly; patients in Ward 18 and the psychiatric emergency room are unable to gain timely admission to Ward 4-W; chronically mentally ill persons in the Denver 3aiis remain incarcerated for inappropriately long periods of time because they cannot be admitted to Ward 18; and so forth throughout the entire system. [This leads to theJ critical and persistent problem Lofi...the 'revolving door' patient -that is, the chronically mentally ill person who receives treatment in an inpatient facility, is discharged to substandard housing or the streets where adequate treatment is not available, is arrested for a minor offense or is recertified and then begins the entire cycle all over again" <4,pp.lb-17).
The Department of Health and Hospitals also provides services to the chronically mentally ill through the Community Support Systems Program [Note which provides day
S3


care (partial care), outreach, and vocational rehabilitation. Day care, which ia provided at the facility itself, includes training in social and living skills and in other areas designed to increase the probability that the ciients wili be able to maintain themselves in the community. While there are significant numbers of the chronically mentally ill in the northwest catchment area who could benefit from this program, the number of clients served--169--has reached the maximum due to staff limitations.
The Department of Health and Hospitals physical and mental health programs are designed for people who are capable of finding and using these programs, which many chronically mentally persons cannot do, so the outreach program was designed whereby staff members go to two boarding homes in the catchment area. La bonte and Monarch Manor, to provide social and recreational guidance, medication checks, and crisis intervention work. The services provided by the outreach program, in conjunction with other services available through the Department of Health and Hospitals, still do not meet the mental health, physical, and medical needs of the 171 residents served. (There is about a boss overlap among persons receiving outreach services and those in the day care program, further reducing the number of people seen.) While the residents in the other boarding homes in the catchment area could also benefit from outreach services, they "are not provided as a result of a deliberate policy choice by the Department of Health and Hospitals and


not for any clinical reason (4,p.21).
The vocational rehabilitation component of the program consists "of a range of services which can lead to 30b placement and retention in the most independent and competitive setting appropriate for each patient. Such services include vocational counseling, vocational assessment and evaluation, daily living skills training, sheltered employment, transitional employment, group placement in industry, on-the-]ob training, vocational skill training, 30b seeking skills training, 30b development and placement, and followup. While it is unrealistic to expect that many chronically mentally ill persons will be able to fully sustain themselves through competitive employment, vocational rehabilitation services are effective for the ma3onty of said persons" <4, p.21>. There are 48 people in the vocational program.
The Community Support Systems Programs were closed on June 1, 1981 as a result of budget cuts made by the Department of Health and Hospitals. The programs were reopened, at a reduced level, in September, 1981. Prior to June, 1981, the number of chronically mentally ill persons being served was a small fraction of those in the catchment area who needed and could benefit from the programs, and since reopening, the number of clients served has never been more that 50X of what they had been before they closed. The closure and subsequent cutbacks in these programs adversely impacted the clients of these programs, causing increases


confusion, deterioration in psychosocial functioning and in living situations.
Deinstitutionalization began in Colorado in 19bl. The population at the State Hospital in Pueblo fell from 7,000 to 2,000, and many of the 5,000 newly released chronically mentally ill came to the Capitol Hill area of Denver because of the availability of boarding homes, nursing homes, and cheap apartments. The community was not prepared to receive these people, especially as the resources for the care of the chronically mentally ill did not follow the patients. They did not receive adequate mental health treatment then, and they are not receiving it now. They have essentially been abandoned to the community. The Department of Health and Hospitals has not provided the mandated services and the Department of Institutions has not effectively monitored the Department of Health and Hospitals to ensure full compliance, as is demanded under their own Rules and Regulations and those of the federal government (which applies since both Departments receive federal funds for their mental health programs).
The Omnibus Budget Reconciliation Act of 1981 (OBRA) is the first statutory basis for finding for the plaintiffs.
OBRA repealed the Community Mental Health Centers Act and replaced it with a block grant program for mental health services, by which monies are given the the state which, in turn, makes grants to community mental health centers. The State Department of Institutions receives block grant funds


under OBRA, and it then distributes some of this money to the Department of Health and Hospitals in its capacity as a community mental health center.
OBRA mandates that states, making grants to community mental health centers using OBRA funds, must reguire that those centers provide a broad range of specified services to the chronically mentally ill. In fact, OBRA regulations place special emphasis on services for the chronically mentally ill.
The attorneys for the plaintiffs stated their reasoning as follows:
[The] statutory requirements are clear.
Chronically mentally ill persons and persons released from inpatient treatment are to be provided with a broad range of specialized community services.
By accepting the block grant monies from the United States, The State of Colorado, through its Department of Institutions, obligated itself to require community mental health centers to meet these standards. The Department of Health and Hospitals, by receiving designation as a community mental health center and by voluntarily accepting its share of the block grant funds, became similarly obligated to provide the services set forth in OBRA.
Defendants have contended, both through testimony and argument of counsel, that (1) they need not provide all the services mandated by OBRA; (2) they are providing these services; or t3) they are required to provide these services only "within the limits of [their] capacity."
None of these positions has merit.
First, defendants have failed to advance any cogent reason why they should be free to ignore the very plain requirements of federal law. The statute is entitled to be enforced as it reads.
Second, the overwhelming evidence at trial demonstrated that only a small fraction of the chronically mentally ill persons in the northwest catchment area are receiving the OBRA-mandated services. Defendants seek to evade this fact


through a curious argument: aii that is required is that the services be "in place," without regard to the number of persons actually served.
Under this theory, say defendants, if one patient receives outpatient care, that requirement of OBKA is satisfied. If one patient receives day care, that requirement is satisfied.
To state the argument is to rebut it.
The third position of defendants namely, that they are required to provide these services only "within the limits of [their] capacity,"...has a surface glitter to it which, upon closer examination, proves to be fool's gold.
A. The limiting phrase applies only to subsection (c)(3)(B), regarding ability to pay. It does not modify any other provision of OBkA, including the requirements for specialized outpatient,
day care, and partial care services.
B. No showing was made at the trial that the Department o~ Health and Hospitals has reached the limits of its capacity in providing the mandated services without regard to the ability of the recipients of the services
to pay for them:
1. There was no testimony as to the cost of providing the required services to all chronically mentally ill persons, instead of just a fraction of them.
2. There was no testimony that the City and County of Denver has no other resources which can be used for providing the services. On the contrary, the Mayor's Budget (Plaintiffs' Exhibit 43) shows that funds could be diverted readily from other less urgent programs.
3. There was no showing that alternative methods, such as co-payment, would not increase the Center's ability to serve all the chronically mentally ill equally.
If defendants intend to rely on the "limits of CtheirD capacity defense, the burden was on them to come forward with evidence at trial sufficient to sustain it. They failed to do so.
Overall, defendants' attempts to evade OBRA are unsuccessful. Although they may cry poverty, the history of community mental health funding by the federal government shows that this is a day state and local governments knew was coming and were required to prepare for.
Federal community mental health funds, first under the Community Mental Health Centers Act and later under the Community Mental Health Systems Act, were intended to be "seed money" with which community mental health centers


could be set. up and guaranteed sufficient revenues to gain a secure footing.
The Department of Health and Hospitals, when it accepted the CMHC funds in the 1970s, knew that those funds would eventually shrink or disappear. Notwithstanding that knowledge, it happily accepted the money. Now that the day of reckoning has come, it wishes to disavow itself of the responsibility.
By becoming the sole community mental health center for the northwest catchment area, the Department of Health and Hospitals displaced other groups which could have assumed that burden and been willing to carry it forward.
Congress, in enacting the community mental health funding mechanisms over a period of twenty years, did not intend to allow organizations such as the Department of Health and Hospitals to skim off the cream in good times and then step aside in bad.
The Department should be held precisely to the legal requirements it knew it was becoming subject to when it accepted the federai funds.
That requirement is to provide all the OBRA services to all the chronically mentally ill persons in the catchment area. Nothing leas will satisfy the law. (4,pp.2£-31)
Colorado's statute, "An Act for the Care and Treatment
of the Mentally 111" [Note 6J, clearly and explicitly
mandates humane, skillful, individualized treatment for the
mentally ill in the least restrictive environment possible.
Courts elsewhere have ruled that statutes that are much more
limited in their language than Colorado's still require
community treatment, i.e. Dixon y^ Weinberger, Patients
Camden County freeholders, Haldeman y. Penhurst state School
end Hospital, Wyatt y. Stickney <5,6,7,8). This court
found In Re Edmistgn <9> that:
A respondent is entitled to a treatment program suited to Cher] needs, provided in the least restrictive alternative.
This is a requirement of the Colorado Mental Health Statutes (S27-10-101 and 116) and is probably a constitutional


requirement, as well (as a condition or limitation on the power o' the state to restrain the liberty of a mentally ill person).
Defendants have consistently argued that the "Act for the Care and Treatment of the Mentally 111" applies only to involuntary patients. This is belied by the words of the Act itself which specifically eliminated the concept of voluntary application for mental health services as being "separate and independent" from involuntary patients. A new provision was added stating that "Any person receiving evaluation or treatment under any provisions of this article is entitled to medical and psychiatric care and treatment".
The statutory right to treatment in the least
restrictive setting has been recognized in Colorado through
the promulgation of the Department of Institutions' own Rules
and Regulations. For "every patient receiving treatment for
mental illness" the mental health professional providing
treatment is responsible for:
Developing a discharge plan, including provision of adequate transitional, aiter-care and follow up services appropriate to the individual patient, calculated so as to maximally reduce the likelihood of rehospitalization or return to restrictive confinement, and assuring referral for and documenting the provision of adequate support services, including but not limited to housing, social services and vocational rehabilitation services, calculated so as to maximally reduce the likelihood of rehospitalization or return to restrictive environment. 2 C.C.R. 502-1, SIV (b)(9) and (10).
In terms of community treatment, the regulations say:
Nothing contained in these regulations shall be construed to limit in any way


the ability and duty of a facility to treat or evaluate persons in the least restrictive setting possible, and unrestricted community placement and outpatient evaluation shall be the preferred alternative whenever possible consistent with the patient's needs and safety. 2 C.C.R. 502-1, SV(D).
Municipal defendants argue that these Rules and Regulations are merely precatory, but they are, in law and fact, mandatory. Decisions in Maryland Casualty Company v_. Pacific Employers Insurance Company (10) and Oil Shale Company y.. Horton (11) give rules, regulations, and general orders properly issued by a state administrative agency pursuant to statutory authority the force and effect of law. The Department of Institutions' Regulations themselves leave no doubt that they are mandatory, and the Department of Health and Hospitals has failed to comply with them.
While the United States Supreme Court has not yet ruled
definitively on the right to treatment in the community, thus
clearly establishing this as a constitutional right, there
has been a long history of state and lower federal court
rulings that, along with federal and state statutes and
regulations, provide a firm foundation for such a ruling. In
brief, the courts have ruled that:
If a person is to be confined because of his mental disability, due process requires treatment as the quid pro quo for the deprivation of liberty... That duty can not be expunged by the simple expedient of terminating the confinement and thrusting the patient onto the streets, unable to cope with a hostile environment or even to provide the minimum necessities of life (4,pp.48-49).
Courts have ruled that the patient's status voluntary
6/


versus involuntary is not at issue. This is based on statute and regulation, the Due Process and Equal Protection Clauses of the 14th Amendment to the Constitution, and the 8th Amendments right to freedom from harm.
The claim that mental health services for the chronically mentally ill must be readily available and accessible, and provided in a non-discnminatory manner is based on the United States Rehabilitation Act of 1972, QbRa,
and the Department of Institutions own Rules and Regulations.


The Defendants" Case
1.1 Municipal Defendants
No one purporting to be a member o the class o chronically mentally ill persons testified at this trial. Instead, voluminous amounts of patient records have been placed into evidence, and it is on this basis that the Court is asked to determine the relevant characteristics of chronically mentally ill persons. While it is unclear that there is any more similarity between chronically mentally ill persons than there is between people in general, a certain very broad characterization of the chronically mentally ill was developed. A chronically mentally ill person suffers from a major mental illness, primarily schizophrenia (bO*-80X), but also including manic depressive illness and organic brain syndrome.
Schizophrenia first manifests itself between the ages of
13 years old and 18, although it may present itself as late
as age 25. From first onset, the patient follows a lifelong
pattern of exacerbations and remissions, but deterioration of
the patient diminishes with age.
Since the deterioration diminishes with age, treatment providers can often be mislead into believing that they have affected a "cure" or have retarded the illness due to the decrease in breakdowns but, in truth, the number of breakdowns a patient experiences is variable with age and is totally unrelated to anything but age... Although the deterioration diminishes and the breakdowns decrease, the illness is still present... because there
£3


is no cure for schizophrenia (12,p.3. Emphasis in original).
There is no cure and no definitive treatment.
Studies undertaken to test the effectiveness of these various programs show that these projects, despite the infusion of huge amounts of money, were not successful and didn't work; that the programs that stressed prevention show only that we don't know how to prevent schizophrenia; that vocational rehabilitation programs don't work and fails to lead patients to competitive employment; and that psycho-social support systems not only does not prevent or reduce, but may actually increase, hospitalizations, has no impact on the periodicity and outcome of the illness and that; although it may improve the quality of life of the patient, it doesn't appreciably improve his skills or provide him with anything permanent (12,p.4).
A local study which assessed the impact of the reduction of' outreach services by the Denver Department of Health and Hospitals (David Shern, Ph.D.: The Impact of the iiiSiHStion of Outreach Services gt the department of Health and Hospitals Mental Health Program, Municipal Defendant's Exhibit 9-B)...concluded that the service cutbacks affected the patients very little.
In like manner, the study of Glen E. Swank,
M.D., Municipal Defendant's Exhibit 16-A, showed that the number of chronically mentally ill patients placed in the Denver County Jail actually decreased during the period of the reductions (12,p.5).
Indeed, the only thing which seems to have an impact on the schizophrenic process and the patient's ability to function is the proper use and control of medications and the intermittent use of emergency hospitalization (12,p.5).
The Denver Department of Health and Hospitals provides a vast array of services, in an integrated manner, that allows patients access to the entire system through entry at any
individual point.


Like other mental health centers, the services provided by the mental health center operated by the Division o
Psychiatric Services are those contracted for by the State of Colorado. The mental health program offers a range of services delivered in a variety of locations, including emergency crisis services, on- ana off-site (Denver General); outpatient and community health services; residential facilities; partial care; acute inpatient care; chronic long-term care at Fort Logan; pre-care or pre-screening; follow-up to hospital services; consultation and education services to social service agencies, to other mental health centers and others; alcohol and drug services as part of mental health treatment; short- and long-term care for children and adolescents; and a van service <12,pp.7-8).
The Denver Department of Health and Hospitals: provides more services and units of service than anyone else in the state; has never refused treatment to a mental health patient "where indicated"; and continues to provide adequate treatment to its mental health patients in spite of funding problems due to decreasing federal funds and increasing costs. In fact, the Division of Psychiatric Services has provided more services than were contracted for by the state.
In terms of class action certification in this case, the
Court
graciously assisted the Plaintiffs'' cause by defining two distinct categories of Plaintiffs ...(They were] the involuntarily certified inpatients and those non-institutionalized, non-certifled group who are less clearly entitled to either constitutional or statutory rights as the two major groups requesting relief...
This concludes any further action concerning the maintenance of the class, with no Order being entered at time of trial defining any type of class (12,pp.10-11. Emphasis in original).


The plaintiffs seeking class action certification hear the burden of proving that all the requirements of C.K.C.P. 23 The Municipal Defendants also ask lor the dismissal of
non-testifying Plaintiffs' claims. The Colorado Court of
Appeals has said that:
Ordinarily, when a party fails to testify regarding facta and circumstances which appear to be material to the case which the party is attempting to establish, the inference may be made that the party refrained from testifying because the truth, if made to appear, would not aid the party's contention (12,p.l2).
None of the named Plaintiffs testified on their own behalf, with no explanation offered as to why they didn't do so.
That testimony is essential in establishing an alleged common law duty of clinical care. Furthermore, under the rule of accepted professional standards whereby a physician or other professional is judged on the basis of what the accepted professional standards are m terms of the skills and knowledge possessed by members in good standing in their profession in similar communities, the Plaintiffs' experts' testimony on the value of their mental health programs does not document medical deficiencies in the provision of mental health care in the northwest catchment area. Thus, Plaintiffs' have not even developed a grime facie case, and their claims should be dismissed.
As to the Plaintiffs' claims that their constitutional


rights are being abridged, the United States Supreme Court's ruling in Youngberg Vj_ Romeo (13) would seem to answer this claim. The Court found that a constitutional right to "liberty" applied only to institutionalized patients, not to those in community settings. It aiso found that states (and, by implication, those the state contracts with to fulfill its obligations) have great iatitude in choosing what treatment programs they offer. And finally, the rights of institutionalized patients are not absolute, but must be weighed against relevant state and community interests.
As Plaintiffs have failed to show that adequate treatment programs are not being offered, it is Impossible to give credence to their "constitutional claim for the creation of new and expanded programs".
Plaintiffs' arguments for relief on the basis of UHRA
being substantially similar to the Developmental Disability Act analyzed by the United States Supreme Court in Fennhurst State School and Hospital v. Hgldermgn,
101 S.Ct. 1131 (1931), creates no private rights in plaintiffs to have community facilities created for them by defendants, absent adequate funding (12,p.lb).
Neither have Plaintiffs been able to prove any discrimination against them "by means of their handicap when the Department of Health and Hospitals reduced and reorganized services in June, 1931". They did not show that they were denied services from other programs based solely on their handicap. Further, they could only argue for the reopening of a program, not the creation of new ones, if they were able
to substantiate this claim


Plaintiffs' claims based on the Community Mental Health Services-Purchase Act, C.R.S. 1973, S27-1-201, et seg., as amended, are egregious. This Act, like OBRA, is a funding mechanism and
creates no private substantive rights in Plaintiffs to have any type of facility created...The rules and regulations promulgated by the State Department of Institutions, Division of Mental Health...also create no private substantive rights in Plaintiffs to have programs created <12,pp.17-18J.
In analyzing the Care and Treatment of the Mentally 111
Act, C.R.S. 1973, S27-10-101, et seg, as amended [Note 6J,
it is obvious that it
creates no substantive right to treatment sufficient to support a mandate for the reinstitution or creation of treatment programs. It is equally clear that the legislature, in creating the Care and Treatment of the Mentally 111 Act, created a commitment statute with care and treatment provisions, not a "bill of rights" statute mandating affirmative action <.l2,p.zb;.
II. State Defendants
The basic position of the State is that the rights alleged by the Plaintiffs do not exist.
In testimony it was shown that The main goal of the Division of Mental Health la to achieve cost effective treatment and support services to the chronically and severely mentally ill available statewide". To that end, the State has provided S140 million to community mental health centers since the 1960s. This does not include matching


funds for federal programs, tne dollar equivalent of the use
of the two state mental hospitals, or monxes paid out of the medically indigent fund.
The Department of Health and Hospxtais Mental Health Division has received $16.5 million from the State's general fund and matching funds or utxlizatxon of the state hospxtais equal to $750,000. From July 1, 1381 to June 30, 1332 Denver's Mental Health Program recexved over $i:,010,000 o state general funds, and for fiscal year 1382-1383 the Department o~ Mental Health has been allocated over $2,161,000.
In terms of funding mechanxsms, in general the tederal program provided seed money that was to decline over a period of eight years. This was to purchase servxces for the chronically mentally ill. Until 0BRA, federal funds went directly to the community mental health centers, but now they go to the states and they, in turn, funnel them into the centers.
The Department of Institutxons' Divisxon of Mental Health extensively monitors community mental health centers to ensure compliance with the regulations and contracts through site visits, audits, data checks, local mental health plans, and complaints. Thxs monxtoring is a continuous process.
The State's philosophy is to work with the centers to correct any deficiencies that may be found. Centers not in compliance need to show a good faith effort to correct the
<£7


problem, or funds are withheld.
The Department of Health and Hospital's programs are in line with state priorities and their community treatment programs are providing effective training to their clients.
By June 1, 1981, when the Department of Health and
Hospitals cut back its services, the city had fulfilled its
contractual agreement with the state. All the services
required by state and federal funding statutes ana
regulations continued to be provided by the Department of
Health and Hospitals.
It was testified to time and again that the decisions made in the summer of 1981 were made by city officials and employees.
Dr. Casper specifically reiterated that the state was not involved in the decision making process, and that the state was helpful and encouraging in regard to the reopening of the [community]facility and other facets of the program in September,
1981 <14,p.l7).
The Division of Mental Health expects that community mental health centers will provide the range of services specified in standard 2.1 2 C.C.R. 502-2: The division does not expect a center to do more than their resources allow. The interpretation of the term available" used in the regulations is that the services are in place and accessible" means it can be utilized by individuals, for example, there are no barriers to the handicapped. Centers are not required to provide transportation to the facility and if, unfortunately, persons are afraid to go to the facility because of its location this is not a criteria from a regulatory standpoint. The recent addition of the word "ail" to the standard that "services shall be available and accessible to all residents of the catchment area...." was meant to discourage any policy of discrimination against or exclusion of any class of individuals from receiving services. Finally, the division


of mental health considers the term "least restrictive setting possible" to mean that if an individual could be treated as an outpatient rather than as an inpatient the person should be so treated, with the caveat that possible means what is available or practical, not conceivable <14,p.2G. Emphasis in original).
The state questions the appropriateness of the class certifications, and believe that the certification is too broad in light of the evidence regarding class representatives. In fact.
No one patient or no composite plaintiti presents a factual situation representing the supposedly thousands of chronically mentally ill sitting in boarding homes in the Capitol Hill area for whom no services have been provided... [Under Colorado law) a party may bring action on benail o a class if...his claim is representative or typical of the claims of the class and he will adequately protect the class interests...
The court £holds.l that a person could not represent a class when their interests were "not in full harmony" with the person (I4,p.22>.
The plaintiffs claim a constitutional right to a coordinated community support system. Not only has the Supreme Court not ruled on such a right, but in Youngberg Romeo <13) it stated that "a state does not have the obligation to provide substantial services to its residents". The Plaintiffs claim the basis for this right is grounded in the practice of deinstitutionalization where patients were dumped into the community and out of the system. It is State Defendants contention that plaintiffs were not lost to the system, as their records placed in evidence show. Host of them were not part of the deinstitutionalization movement.


It is State Defendants contention that the class represented, if any, is those people being served in Department of Health and Hospitals'' programs, thus there is no basis for their claim to a right to receive treatment in a community support system.
Plaintiffs claim that State Defendants have not fulfilled their obligations under the Community Mental Health Centers Act, while the evidence shows that the state established reasonable standards, monitored the Department of Health and Hospitals, enforced the requirements contained in the federal statute, and has developed an equitable formula for dispersing funds.
As to Plaintiffs claims that the state discriminated
against them by closing the programs:
Absolutely no evidence was presented tending to show that the state discriminated against the chronically mentally ill. Rather, all of the evidence showed that the state defendants have targeted the chronically mentally ill as a high priority population for receiving services. Thus, plaintiffs have failed to sustain their burden of proving that the state defendants violated any federal requirements... The evidence showed that the state did not allow" the closure of any program: The state was neither advised nor consulted regarding decisions made by municipal defendants.
The municipal defendants had fulfilled their contracts for that year and were still providing the range of services to qualify as a community mental health center <14,p.26. Emphasis m original).
On the issue of the right to treatment in the least restrictive setting possible, "the only reasonable interpretations of the term C' possible' ] are 'available'' and


Closing Arguments [Note 73
I. Plaintiffs.:
In analyzing the view of the facts presented by the defendants...it is important to keep in mind that all but one of their witnesses were current employees. The inherent bias of persons called upon to publicly defend their own actions and programs in a court of law need not be dwelled upon. A much more accurate assessment of the facts can be obtained by reviewing the defendants' out of court statements made for purposes other than litigation. Those statements are contained in the numerous documents in evidence or were admitted to on the witness stand. In addition, the testimony of witnesses who either had no personal staKe in the outcome of the suit, or were current, frontline professional staff of the municipal defendants presents a more objective view of the facts.
Addressing now some of the specific factual issues raised by the municipal defendants, they first appear to confuse the false issue of "cure" with the real issue of individualized "care and treatment" in the "least restrictive setting possible" as required by statute, regulation, and contract. The municipal defendants seem to contend... that since there is no known cure for schizophrenia, all that works and ail that is required for persons with chronic mental illness is to medicate them and provide short-term hospitalization.
This position is belied by the defendants' own actions and words (e.g. the statements of Dr. John Sbarrbaro, made on tape just at the time the mental health cuts were announced and to which he admitted, that "to eliminate one-third of ambulatory [outpatient] care...is insane," that "we will pay the penalty" for these cuts, and that the "main casualties" would be those persons with chronic illness and those who had been "freed up from the institutions." If the municipal defendants truly believe that only medication and brief hospitalization had any positive effect on persons with chronic mental illness, why did they bother to lobby for the original state "high-risk" funds which established the predecessor to their current Community Support Systems Program? Why did they recently open the Columbine Group Home? Why does each of their recent Catchment Area Plans state that there is a critical need for at least 100 intermediate care facility beds in their catchment area?), as well as the testimony of Dr. Richard Warner (Boulder), Dr. Harold Shure, Dr. Paul Poiak, Dr. Louis Bruno, and others; the official position of the American Psychiatric Association..., the position and actions of the National Institute of Mental Health; the Colorado State Mental Health Plan..., the regulations of the Department of Institutions; and common sense. The picture that develops from these


witnesses ana exhibits as to the care ana treatment neeas of persons with chronic mental illness is a consistent one: a full spectrum or continuum of coordinated treatment and supportive services in the areas of: 1) humane and therapeutic residential alternatives, 2) vocational and pre-vocationai training and sheltered workshops, 3) community survival skills ana socialization training, 4) social support services and income maintenance, 5) crisis intervention and outreach and 6) meaications and meaical monitoring.
The picture that develops from these same witnesses and exhibits as to the likely result of failing to provide such care and treatment to persons with chronic mental illness is also consistent: deterioration m their physical and mental condition; repeated failings and/or involuntary hospitalizations for some; extreme isolation, paranoia and depression for others; long-term institutionalization in a state hospital or barren nursing home; placement in a substandard boarding home; or wandering the streets without, adequate resources or support. According to Dr. Edmund Casper, there are three to five thousand such persons now in Denver's Capitol Hill area alone...
The municipal defendants also contend...that they are providing an integrated and "comprehensive system available to each and every patient of the Department of Health and Hospitals."...Almost these precise words were repeated by virtually each of their witnesses. But a look beneath the rhetoric presents a different picture.
First, the care, treatment and "quality of life" neeas of persons with chronic mental illness are ranked the very lowest m the Health and Hospital system as a result of the Foote Study. One consequence was the majority community mental health program cuts in June of 1SB1. Thus, the commitment of the municipal defendants' to meeting the community support and treatment needs of persona with chronic mental illness is low. They have taken the position that attempts to deal with these needs, by other than medication and brief hospitalization, is misdirected. The testimony and deposition...of Dr. Harold Shure, psychiatrist for the current Community Support Services Program at 1250 Broadway, make it clear that there are many persons with chronic illness in the northwest catchment area of Denver not receiving adequate mentai health and medical care and treatment, many of whom are living in overcrowded, unsupervised, boarding homes and nursing homes which are not. conducive to mental or physical health. According to Dr. Shure, many of these persons are the very same individuals he had seen at Colorado State Hospital years earlier before deinstitutionalization. He stated that their basic food, clothing and shelter needs, let alone their psychiatric needs, are not being adequately met. He further testified that there have been a number of instances where even persons with chronic mentai illness on Health and Hospitals' treatment rolls have failed to get adequate medical attention until an emergency, iife-threatening situation deveiopea, and


that many of his chronically mentally ill patients are unable to cope with the long waits, stress, ana bureaucracy of the out-patient clinics and emergency room. He testified that their mental illness plays a significant part m this inability.
The municipal defendants' contention that they are providing an integrated and comprehensive system also ignores the large numbers of needy persons with chronic mental illness in their catchment area not being served at ail, or only receiving the moat minimal services. Before the 1981 cuts, only a fraction of those in need were being served.
The partial restoration of Community Support Services starting in September of 1SB1 is now only serving approximately 50* of the number previously being served. The testimony of Lynn Jones, R.N., Team Leader, Dr. Shure, and David Murphy, Director of the Community Support Services Program, was that the programs are at or exceeding capacity and that there are large number of persons in need not receiving services. Of an estimated three to five thousand such persons in the Capitol Hill area alone, only lbS were enrolled in the day care program, 171 were enrolled in outreach services (with a SOX overlap), and only 48 were in the vocational rehabilitation program at 1250 Broadway as of July 1, 1982.
The defendants' contentions regarding the class certification are simply without merit. First, [the court's) original certification was not limited to involuntarily certified patients. Second, one of the very first matters dealt with at the trial by this court involved the class certification issue raised by counsel for the state defendants. This court ruled that the original class certification would remain in effect. Third, the named plaintiffs are clearly representative of the class. This was the uncontradicted testimony of Dr. Louis Bruno, the court appointed expert witness, as to piaintifis Ruth Goebel, Kathy Edmiston, and Lindsey Griffith. The representativeness of these and the other named piamtliis is also amply demonstrated when their medical records and Probate Court files are compared with the general characteristics of persons with chronic mental illness as described by Dr. Richard Warner (Boulder), Dr. Bruno, Dr. Casper, Dr. Mendel and Dr. Paul Polak. The state defendants' claim tnat these plaintiffs cannot represent the interests of the class members "lost" or "dumped" by the system is simply not true. The interests of the named piamtilts in the existence of an adequate, individualized community care and treatment system is "in full harmony" with the interests of the class members who have had little or no significant contact with the system, and to contend that, because certain named plaintiffs have not always fully cooperated with the coercive, inadequate, overly restrictive, understaffed, routimzea, non-therapeutic "treatment" environments in which they have been placed, they somehow have waived their statutory and constitutional right to treatment, cannot be supported.


Municipal defendants' next contention that, because the named plaintiffs failed to testify, their claims should be dismissed, requires little response. The case upon which they rely, Ackmgnn y^ Merchants Mortgage Trust Corgi, 2 Coio_. Lawyer 2845 (Colo.App., bept., 1982), simply holds that:
the trial court did not err in directing a verdict against [the non-testifying plaintiffs] on the basis that there was insufficient or no evidence to establish Itheir claims] Ibid, at 2646.
There is no basis for dismissal, regardless of who fails to testify, if the claims are otherwise established, as they were in the case at bar. To bar the claims of persons with severe chronic mental illness because that very illness prevents their being able to adequately present those claims in open court themselves has no basis m law or equity, especially where, as here, the plaintiffs have been subjected to countless evaluations and treatment encounters, the records of which they have freely put into evidence.
...Only a few points need to he made [about the plaintiffs' constitutional claims].
Defendants' reliance on the recent Youngberg Komeo decision... to support their contention that plaintiffs' have no constitutional right to treatment in the community is misplaced. If anything, that decision lends support to plaintiffs' claims to a constitutional right to treatment to ensure freedom from undue restraint of their liberty by the state. Plaintiffs have never contended that there is an abstract constitutional duty to provide substantive services to all mentally ill persons, but only in those situations...in which there has been a deprivation of liberty. Youngberg does not at all address the issue presented in the case at bar and does not even purport to establish the maximum constitutional requirements in this area. Mr. komeo was only seeking a constitutional right to minimally adequate habilitation" in the institution... and the Supreme Court, after concluding he had sucn a right, stated that:
In view of the kinds of treatment sought by respondent and the evidence of the record, we need go no further in this case. 50 L.W. 4684.
Furthermore, the entire constitutional issue of the least restrictive setting (or least drastic alternative") was not at issue in Youngberg, since it was conceded that Mr. Romeo was already being treated in the least restrictive setting possible... That is not the situation here, where, for example, plaintiff Kathy Edmiston was held in a more restrictive environment than Fort Logan staff thought she needed from January, 1981, until September, 19ai...


The state also contends that there was no evidence presented of "dumping" from the state hospital during the period of "deinstitutionaiizatlon" in Colorado, so as to support a constitutional claim to treatment. On the contrary, there was ample testimony and documentation of this issue from Dr. Casper, Dr. Poiak and Dr. Shure. All three were actively involved in the mental health system at that time and stated that inadequate planning and placements were made. Dr. Shure specifically stated in his testimony and his deposition that a substantial number of the chronically mentally ill in Denver came from the Colorado State Hospital and are now in barren, overcrowded, and poorly supervised boarding homes and nursing homes, receiving little or no care or treatment. Dr. Michael Mathews also testified that many of the chronically mentally ill patients he has seen in the series of nursing homes that Health and Hospitals has used over the past years had originally come from long term institutionalization at the Colorado State Hospital.
LOn thej right to treatment in the community under the Act for the Care and Treatment of the Mentaliy 111 (the Act) and the regulations thereunder...only a few responses need be made, since this issue has been extensively briefed by plaintiffs, who would refer the court to those earlier briefs, as well as the Amicus Brief of the Disability Law Committee of the Colorado Bar Association, the committee which developed the original draft of our current statute.
The municipal defendants contend... that the Act's purpose is "first and foremost, a commitment statute, a means to involuntarily hospitalize and treat" people... They conveniently ignore the general assembly's own stated purpose, set forth at C.K.S. S27-10-101:
(l)The general assembly hereby declares that the purposes of this article are:
(a)To secure for each person who may be mentally ill such care and treatment as will be suited to the needs of the person and to insure that such care and treatment are skillfully and humanely administered with full respect for the person's dignity and personal integrity;
(bJTo deprive a person of his liberty for purposes of treatment or care only when less restrictive alternatives are unavailable and only when his safety or the safety of others is endangered;
n


<2)To carry out these purposes, the provisions of this article shall be liberally construed.
The Colorado Department of Institutions has even acknowledged that all patients at either of the two state hospitals have the treatment rights set out at section llbd) of the Act. The Patient Rights Handbook, distributed by staff to incoming patients at both state hospitals, states:
This handbook is designed to answer some of your basic questions about your rights and responsibilities under Colorado law as a patient in a State psychiatric facility.
m m
The information applies to each patient in this facility, regardless of the kind of admission or commitment.
m m m
In 1975 a Colorado law tooK effect, O.R.S.
1973, 27-10-101 et seg., as amended, which guarantees certain patients' rights. The purpose of the law is:
-To secure for you the care and treatment best suited to your individual needs.
-To make sure your treatment is skilllully and humanely administered and with full respect for your dignity and personal integrity.
-To treat you in the least restrictive setting possible.
-To provide you the fullest possible measure of privacy, dignity and other rights while you are undergoing care and treatment at this facility.
-To encourage you to accept voluntary rather than involuntary treatment.
PATIENT RIGHTS
You have the following rights. Your rights may be denied for good cause by the professional person providing your treatment. Denial of any right must be documented in your treatment record. You have a right:


1. To receive care and treatment appropriate to your individual needs.
2. To retain all your civil rights (to vote, marry, make contracts) unless those rights are removed by a court, and to
be informed if any rights have oeen removed .
3. To be treated in as normal an environment as possible. (See Social betting)...
Furthermore, the regulations of the Department of Institutions promulgated pursuant to the Act...clearly require a right to treatment in the least restrictive setting and spell out in some detail what types of supportive and treatment services are required for all persona receiving treatment from designated facilities. both the Department of Health and Hospitals and Fort Logan Mental Health Center are such designated facilities. The state defendants...did not even discuss this set of regulations...
The municipal defendants also contend that plaintiffs are asking that the best possible program" be provided.
That, of course, is simply not the case. The overwneiming weight of the evidence presented demonstrates that individualized care and treatment in the least restrictive environment possible, as required by section 116(1) of the Act, is simply not possible without a broad continuum o coordinated community treatment and support services. The regulations of the Department of institutions promulgated pursuant to the Act make that clear, as does the official position of the American Psychiatric Association... the Colorado State Mental Health Plan...the testimony of Drs. Warner, Bruno and Polak, and numerous statements of Dr.
Casper...
Finally, both sets of defendants have worked feverishly to support their notion that when the legislature clearly stated at section 116(1) of the Act that the least restrictive environment "possible" was required for "any person" (not "any respondent") receiving treatment under the article, and that when the legislature also clearly mandated in section 101(1)(d) that "this article shall be liberally construed" to carry out its purposes, the legislature did not really mean what it said. The defendants contend that whatever treatment programs and facilities happen to be around are, ipso facto, the least restrictive possible.
Under the defendants' theory, if the state choose to lock up in a maximum security state hospital everyone who was mentally ill and unable to live completely independently, it would be lawful under the Act (to say nothing of the state and federal constitutions.) Other courts with less compelling statutes than ours have not accepted this position, most notably in Dixon y^ Weinberger, Patients v.


Camden County New Jersey freeholders, and Haiderman YiEQQfay?:§£ This court should not accept that position either.
...Regarding the Omnibus Budget Reconciliation Act (QBRA) claims, both sets of defendants merely assert there was no evidence o~ Violations presented by plaintifls. The evidence presented by both plaintiffs and defendants was that for at ieast a 3 month period in 13ai, the health and Hospitals Mental Health Program provided virtually none of the required specialized outpatient services for persons in their catchment area who are chronically mentally ill or who had been discharged from inpatient psycniatric treatment and that at the time of trial some of the mental health programs had been restored, but only at SO* of the previous level.
The evidence also clearly established that rather than paying special attention to individuals who are chronically mentally ill," Health and Hospitals ranks them at their lowest service priority and claims that the only treatment of value to them is medications and brief hospitalization. As Dr. Harold Shure, the psychiatrist for the 1250 Broadway programs, and others testified, the services of Health and Hospitals are often not "available and accessible promptly"... to chronically mentally ili residents in need of treatment, with near deadly results on occasion.
Furthermore, as Health and Hospitals' own Beneficiary Reports and other data show, persons they rate as being chronically mentally ili make up only a fraction of all persons served in their mental health programs. The state defendants are well aware of these policies and practices of the Department of Health and Hospitals, and yet they continue to provide them funds under OBRA. Thus, they are not fulfilling their responsibilities to assure compliance with the federal act.
Regarding the defendants' position as to the plaintiffs' Section 504 and other discrimination claims, we refer the court to...the conclusion of the United States Supreme Court on this issue:
Section 504 is violated, not merely by a sign that says "keep out", but by the failure to act affirmatively to redesign and lunction-ally redesign the service so that disabled people may use it effectively. (.Lgu v. Nichols,
414 U.S., 563, 56b [1374]).
The defendants merely assert that the plaintiffs tailed to prove discrimination. The record is replete with evidence that persons with severe chronic mental illness, precisely because of this handicapping condition, are unable to take advantage of traditional outpatient mental health programs such as Health and Hospitals emphasized before the 13bl cuts, and emphasized even more so after those cuts. The evidence is also clear that Health and Hospitals acted intentionally and was aware of the likely effect iFoote Report Criteria, E. Casper, J. Sbarrbaro, H. Shure; and that the anticipated


discriminatory result did in tact occur. Because the Department of Institutions has continued to pump millions of state ana federal dollars into the Health ana Hospitals system, knowing that the needs of persons with chronic mental illness are the lowest priority for that system, they too are responsible for the violations.
Lin conclusion] in New Jersey Association lor Retarded Citizen y. New Jersey Department of Human Services, 44b A.2nd 704 (N.J. Sup.Ct., 1982), the New Jersey Supreme court held that legislative language similar to that in our Act required the state to provide habilitation for each adult subject to the state's power ana to furnish such services "in
the least restrictive setting......rhe state must minimize
their segregation from society to the extent feasible while providing for their needs." Id. at 712. The court rejected the view that the state could provide treatment only in an institutional setting.
The ianguage used by the court there should be adopted by this Court with respect to the mentally ill:
The services offered to mentally retarded citizens should be provided in a spirit of optimism. The Legislature has declared it the policy of this State to minimize the developmental potential of these citizens while affording them the maximum feasible personal liberty. Like ail other citizens, the mentally retarded have the right to pursue happiness.
Unlike other citizens, they have unique hurdles to overcome in doing so. Rather than exclude them from the pursuit of happiness the Legislature has made an effort to include them in our civic community by providing them the special services they need to develop and grow. This puoilc policy affirms our common humanity. Their concerns are our concerns. In this State, we do not set people adrift because they are the victims of misfortune Lid. at. 713).


II. Municipal Defendants.:
[Plaintiffs have determined] what they perceive to he "facta...clearly established by the weight of the evidence at trial." Municipal Defendants, while recognizing that Plaintiffs wish to present a view of the evidence which would best bolster tneir claims, nonetheless have some serious reservations about the "facts" which the Plaintiffs set forth as facts. While it would be unproductive and time-efficient to analyze Plaintiffs' facts, [one by one], Municipal Defendants wish to make mention of but a few of their reservations and ask this Court to be cautious in accepting all of Plaintiffs' ["facts"]...
Plaintiffs' "facts" include facts which have been established at trial (for example, "The public mental health system supervised by the Department of Institutions consists of two state hospitals [Colorado State Hospital at Pueblo and Fort Logan Mental Health Center at Denver] and twenty-three community mental health centers and clinics located throughout the state; the Department is authorized to enter into such contracts by the Community Mental Health Services Purchase Act...; and the Department of Institutions das enacted its Rules and Regulations governing agencies from which it purchases services]. Hut these "facts" also include disputed facts (for example, without... treatment, persons suffering chronic mental illnesses will deteriorate at great personal cost to themselves and at great cost to society; this deterioration may include increases in delusional thinking, acting out, and suicidal behavior, increased isolation, poor physical health. Inability to care for one's basic physical needs, decreased psychosocial functioning, increased involvement with the criminal justice system, and even, ultimately, an untimely death; without effective community treatment, there is a substantial likelihood that chronically mentally ill persons will require rehospitalization, often for extended periods of time...); natters of speculation (for example, there are substantial numbers of other chronically mentally ill persons in the northwest catchment area who could benef it from... services but who are not receiving them; the persons
receiving treatment in the day care program tend to be those whose illnesses are least disabling and who are, therefore, able to formulate the intent of going to the center for treatment and then carry out that intent;...and the closure of the programs adversely affected the chronically mentally ill persona previously receiving services from the program); and conclusions (for example,...these [chronically mentally ill] persons [released from the State Hospital] did not receive are are not receiving adequate mental health treatment suited to their needs...; there is currently a crisis in the provision of mental health services to chronically mentally ill persons in the northwest catchment area; and there are thousands of mentally ill persons in the


northwest catchment not receiving adequate mental health care) At least one "fact." is also either speculative tat best) or an outright misstatement of the evidence (The opening of the group home was unreasonably and unnecessarily delayed for a period of more than ten months after funds were made available for it).
...The above review of Piaintiiia' "facts** is not intended to be exhaustive. Municipal Defendants merely list these examples as indicative of their reservations of Plaintiffs' "facts".
The Omnibus Budget Reconciliation Act of 1981 provides no right to treatment in the community and Plaintiffs have not shown any violation of that act.
The Plaintiffs continue to maintain that they have a federal statutory right to treatment in the community and they allege that COBRAJ is the source of that right. Their position continues to be wrong.
...After discussing the merits of this claim [the Court) has already correctly concluded that there exist no privately created rights in Plaintiffs to have community facilities created for them by State or Municipal Defendants absent adequate funding...
COBRA) is substantially similar to the Developmentally Disabled Assistance and Bill of Rights Act...("DD Act") as [the Court) correctly ruled, and an analysis of the DD Act would apply with equal force to COBRA). In Ggrrity y. Ggilen 522 F.Supp. 171 (D.N.H. 1981), the Court, after an exhaustive review of the DD Act and case law, stated, at pp.202-203:
Accordingly, the Court finds and rules that pursuant to the DD Act the plaintiffs herein have an implied private right of action against the Secretary of Health and Human Services for the purpose of compelling him to perform his mandatory statutory duties.
The implication of this limited private right of action is consistent with the DD Act and furthers its purposes, whereas permitting action against the state or its employees pursuant to 42 U.S.C. 31983 would serve only to undermine the carefully formulated regulatory scheme created under this federal-state cooperative program. Additionally, policy reasons abound as to why the Secretary and not the state or its employees should be made to answer under the DD Act.
In the case at hand, the Secretary has continued to place his imprimatur on the State of New Hampshire's state plan required by the Act, and has apparently determined that New Hampshire substantially complies with the Act, for there is no indication that the Secretary


has ever withheid-or threatened to withhold-funda from the State. It would be anomalous inaeed for this Court to enjoin the State of New Hampshire to comply with g 1eaeral-state grant program administered by the Secretary when the Secretary himself has aireaay deemed-either explicitly or implicitly by approval of the State plan and the 1 or -warding of tunas to the State-that the State is in compliance. (Emphasis added).
The Ggrrity Court based this conclusion, in part, on the United States Supreme Court's declaration in Pennhurst, infra, that the DD Act does not speak in terms of personal rights but focuses on the obligations of states wishing to receive funds.
The same rationale applies to COBkA) inasmuch as both Acts are merely funding statutes. That COBRA) is a funding mechanism and not a declaration of rights is clear if one but takes the time to analyze its provisions in full and not by selected parts. In short. Congress, by the passage of this Act, clearly intended that block grant transfers be made to the states (Sections 1912 ana 1913), with the states then making grants to community mental health centers which provide comprehensive mental health services (Section 1915). Section 1915 was obviously intended to indicate to whom the federal funds should ultimately go; it as not mtenaed to require creation of programs unless the state so chose. This latter point is clear if the whole of Section 1915 is considered. (Although Plaintiffs have quoted subsections (a) In order to receive gn allotment for g fiicgl yegr under section 1912(b) each State shall submit an application to tne Secretary.
95 Stat. 54b. (Emphasis added.)
Considering this language then. Plaintiffs construction of Section 1915 as a declaration of rights strains the deductive powers. It also strains the evidence. The testimony of Jack Bartleson indicated that federal authorities, in implementing the Act's predecessor, the Community Mental Health Centers Act,...actually rejected some applications for grants as being too ambitious, surely a contradictory result if the congressional mandate was for broad programs. Nothing in the new Act has created such a mandate.
In any event. Plaintiffs have failed to show a violation of COBRA). There is no indication that the Secretary has ever withheld or threatened to withhold -funds from the State (Ggrrity*. suprg) and this is so no doubt because the State of Colorado through its contractee, the Department of Health and Hospitals, provides all of the


services mentioned in the Act (testimony of Edmund Casper, M.D.). The Act requires no more.
CUf Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously.
That canon applies with greatest force where, as here, a state's potential obligations under the Act are largely indeterminate.
State Hospital Vj, Hgldermgn.)
Under the Pennhurst rationale, had Congress wanted to impose upon the state or the community mental health centers absolute obligations to provide a certain level of services to a certain number of people, it could have done so in clear, unambiguous language. That it didn't and chose instead to create a funding mechanism displays the Congressional intent, namely: to assist the states in providing services...
The same reasoning applies to tne so-called "seed money" theory... COBRA] provides no impetus to this theory. Instead, that Act is, in intent, the same as the Medicaid program (Title XIX to the Social Security Act) which the United States Supreme Court considered in Harris McRae, 44a U.S.
297, 100 S.Ct. 2671, 65 L.Ed.2d 7B4, wherein the Court stated:
The Medicaid program created by Title XIX is a cooperative endeavor in which the Federal Government provided imanclal assistance to the participating State to aid them in furnisning health care to needy persons. *** Nothing in Title XIX as originally enacted, or in its legislative history, suggests that Congress intended to require a participating State to assume the full costs of providing any Health service in its Medicaid plan. Ouite the contrary, the purpose of Congress in enacting Title XIX was to provide federal financial assistance for all legitimate state expenditures under an approved Medicaid plan.
(References omitted.)
Since the Congress that enacted Title XIX did not intend a participating State to assume a unilateral funding obligation for any health service in an approved Medicaid plan, it follows that Title XIX does not require a participating State to include in its plan any services for which a subsequent Congress has withheld federal funding. (Footnote omitted.) Title XIX was designed as a cooperative program of shared financial


responsibility, not as a device lor the Federal government to compel a State to provide services that Congress itself is unwilling to fund. 44a U.S. at 308-309,
85 L.Ed.2d at 799.
[GBRAi is the same type of legislative creature.
Municipal Defendants are puzzled by Plaintiffs' Characterization of the Department of Health and Hospitals as some sort of malevolent, devious lot, sKimmmg off cream and making off with the goods when the heat's on. Municipal Defendants trust that such characterizations were spawned by the zeal of litigation and not by a sincere belle! therein; to the contrary, the evidence showed that the Department of Health and Hospitals, through its Mental Health Program, including the operation of its community mental health center, operated, during the heyday of great federal funding, an extremely admirable program, parts of which were nationally recognized...and which, to this day, provides a high quality and broad range of services in spite of substantial reductions in federal contributions. Vet, m spite of this federal drop, Municipal Defendants have continued to provide substantial amounts of money to their health system in general and their mental health program in particular. This is far more than the Harris Court would require.
Equally bewildering are Plaintia' assertions that "only a small fraction of the chronically mentally ill" are receiving services and Plaintiffs' manufactured ciaim that Defendants have somehow argued that if only patient is served, the federal requirement is satisfied...First, Plaintiffs' ciaim of "only a small fraction" is allegation, not fact. Plaintiffs have not shown that anyone, truly in need, is denied service; indeed, the named Plaintiffs, as representatives of the class, have been extensively served. (Plaintiffs seem to assert that all chronically mentally ill persons are, solely because of that classification, ipso facto in need of services. Where is the evidence to support this tenuous position? It lacks.) in contrast, the unrebutted testimony is that large numbers of mentally ill persona are served (testimony of Bruce Berger and Dr. Casper...). Second, the witness A1 Sanchez was asked directly if the provision of services to but one person would satisfy the requirements; his answer was in the negative.
The Plaintiffs engage in sophistry in their discussion of the "within the limits of its capacity" limitation of OBRA ... Plaintiff s correctly cite Section 1915(c) (.3) .. .but then would have this Court make like the blind man describing the elephant after feeling only its tail. Contrary to Plaintiffs assertion. Section 1915(c)(3) is an integral part of, and limits. Section 1915 as a wnoxe and Section 1915 is, in turn, an integral part of the Act. To construe otherwise would be meaningless. Section 1915, correctly construed, states that a state, in order to receive funda...agrees,


iQfcE glig, to n*He grants to community mental neaith centers for services to individuals residing in a particular geographical area...in a non-discriminatory manner (anility to pay, health condition or any other factor) so far as its capacity permits...by a mental health center where services are available and accessible promptly...(Municipal Defendants have here only summarized the meaning of Section 1915(c)(3), recognizing that Section 1915(c) (.3) contains more language but that language does not alter the Section's basic meaning.) The "within the limits of its capacity" thus qualifies all of Section 1915(cJ, all of Section 1915 and all of the Act, including the description of services..., which services the evidence shows are being provided and which description most certainly does not include a community support system as envisioned by Plaintiffs.
The inescapable conclusions are thus that (OBkA) provides no right to treatment in the community which can be enforced against either State or Municipal Defendants and that Plaintiffs have not shown a violation thereof.
The Care and Treatment of the Mentally 111 Act creates no obligation to provide treatment in the community.
Plaintiffs maintain that Lthis Act)...and particularly Section 116(1)(a) thereof, guarantees the right to treatment in the community and, in support of that contention, cite several cases from other jurisdictions, urging this Court to construe the Colorado statute under the light of those jurisdictions' opinions. The Colorado statute must, however, be analyzed on its own.
Differences in statutes of the various jurisdictions make analyses thereof little value in construing the Colorado statute. In Dixon v^ Weinberger..the Court found, alter analyzing the "extensive legislative history o' the 1964 Act"...and another case interpreting that Act, that the District of Columbia Act resulted in the "statutory creation of a right to the best possible care and treatment for the mentally ill"...(Emphasis added.) Such a conclusion is
contrary to People y Amgyg,___Colo.App.____, 5y2 Pl!d 1359
(1979), where the Court stated that a court may not determine whether the best possible decision was made...
in Patients v^ Camden County board of Chosen freeholders a county superior court considered the New Jersey commitment statute which is substantially different from that of Colorado...
Likewise, the State of Pennsylvania statute, as discussed by the federal district court and court of appeals, in Hgldermgn y^ Pennhurst State School and Hospital..., respectively, is vastly different than its Colorado counterpart, the Pennsylvania statute containing considerable detail about the duties of the state and local authorities...
The Colorado statute cannot then be measured by these other statutes or by the reasoning of other courts construing those statutes. Municipal Defendants believe that the reasoning [they have previously) set forth... provides the proper interpretation of the statute. Plaintiffs contend


that this Court has already found such a statutory right in its decision in In Re Edmiston... Although the Court there stated that a respondent was entitled to a treatment program suited to individual needs provided m the least restrictive alternative was a requirement of the Colorado Mental Health Statutes, it stopped far short of indicating that such language mandated the creation of programs. The Court also indicated that such requirement applied only to people whose liberty was being deprived... and the Court further expressed some reservations about resource availability... This decision must also be read in light of a later case decided by the same Court involving, among others, the same respondent, namely: the consolidated cases of, inter gliax Kathy L_. Edmiston, No. 81 475, Probate Court, City and County of Denver, decided January 7, 1982. in that case, the Court stated, at Paragraph 23, p.7:
Respondents' expert witnesses testified tnat there is a better way to treat patients such as those on Team 11 Cat the fort Logan Mental Health Center] in a range of residential facilities in the community. The Court is sympathetic to that approach. If the court were making policy as a senior staff member of the Department of Institutions or of Fort Logan Mental Health Center, the Court would have some misgivings about the balance of allocations between inpatient and community care, and would have some misgivings about the long range effectiveness of the behavior modification program which is contemplated for Team II. Nevertheless, the testimony of the respondents" experts does not convince the Court that it should disprove either the basic level of care or the basic approach being empioyed on Team 11.
Certainly the fact situations were different in the above two cases but the request for relief in both were identical. It la also important to note that the Court, in 80 MH 378, did not have the oenefit of a more complete presentation of facta and arguments before it as tma Court now does.
Plaintiffs engage m an interesting, though fatally flawed, analysis of the "legislative history" of 27-10-101 et seg... in an endeavor to show a developing and continuing legislative intent to provide a right to treatment to voluntary, as well as involuntary, patients and, of course, a commensurate obligation on the part of the Defendants to create programs for them. It is not necessary to engage here in a counter-analysis of this "legislative history" since it suffices to point out that, regardiess of any thread that may have woven itself through the original Act of 1915 and its successors, that thread was snipped with the passage of the


new" Act...Wore specifically, the previous Act...was repealed, in toto. There were no amendments Cto it] and no carryover provisions (.with tone] limited exception) The language and procedures of" [the "new" law] were not only fundamentally changed, as Plaintiffs state, they were totally discarded. Attempting to explain the legislative intent of [the "new" law] by means of" reviewing prior acts is thus of little, if any, help. Such does not explain the intent of the legislature either m the current Act's initial adoption in 1973 (effective July 1, 1975) or in any of its suosequent amendments. If Plaintiffs intended to maKe a case for a statutory interpretation such as they here urge, particularly where they seek for a declaration ot affirmative duty, more was required than a circuitous examination of "legislative history." That they did not speaks volumes.
Had the legislature, in enacting and subsequently amending [the new Act], intended the sweeping results which Plaintiffs urge, it is certain it would have done so in clear, concise language, rather than leave it to speculation and inference.
The case for inferring intent is at its weakest where, as here, the rights asserted impose affirmative obligations on the States to fund certain services... (Pennhurst^. supra. Emphasis in original).
This statement was made during a discussion of whether the Congress had imposed financial obligations on the states, but its rationale applies with equal force when a state enacts its own legislation. When it intends to impose a financial obligation, the legislature wiil speak clearly...
In sum, [the current Act] does not provide a right to treatment as maintained t>y Plaintiffs, particularly where affirmative action in the nature of the imposition of massive financial obligations is urged. Even assuming, arguendo, that the statute declares a right to treatment, it does not carry with it an entitlement to the financial resources to have such programs created...if an affirmative financial obligation was [sic] to be imposed on a contractual third party as, here, a community mental health center or upon a county, the statutory language should be very clear...
The Rules and Regulations of the Department of Institutions provide no ngbt to treatment as requested by Plaintiffs and Municipal Defendants have fully complied with the Rules and Regulations of the Department o Institutions.
Plaintiffs have consistently argued that the Rules and Regulations of the Department of Institutions stand tor certain propositions and establish various rights. However, Plaintiffs' expectations and desires as to how the Department of Institutions' rules and regulations snould be interpreted are just that, expectations and desires; Plaintiffs' legal conclusions are, however, in error. Plaintiffs nave attempted to establish that there is something akin to a


statutory right to treatment under 2 C.C.R. 501-2 and 'z
C.C.R. 502-2, and tnat the Department of Health and hospitals has failed to comply with them.
...Rules and regulations implement a statute; they do not, cannot, expand the legislation. "Administrative regulations are not absolute rules," Travelers indemnity y_. Barnes, 552 P.2d 300, 131 Colo.27ft, 282 (1976), if regulations conflict with its enabling act, a court must invalidate them. A regulation may only carry into effect the will and policy established by the legislature ana may not modify or contravene the existing statute, Cohen Dept,.. of Revenue, 593 P.2d 957(Colo.1979).
However, the Court is not facea here with a situation where the rules and regulations are broader than the statute. The testimony of Jack Bartieson, in aescnbing the Division of Mental Health's interpretation of its own rules and regulations comports with the statutory intent (no broad right to treatment, no affirmative obligation). It is generally accepted that "lain administrative agency's construction of its own rule[sJ is generally entitled to great weight," and the "construction will not be disturbed upon review unless it is plainly erroneous or inconsistent with such rule or the underlying statute." Timberline Sawmill and Lumber Inc. v^ Industrial Commission of the State of Colorado, 624 P.2d 367, 370 (Colo.1981). Indeed, a case cited by Plaintiffs themselves. Oil Shale Corporation Vj, Morton, 370 F.Supp.108 (D.Colo.1973), is in accord:
An agency's interpretation of its own rules
and applicable statutes is "binding on the
Courts" (Citation omitted.) Id. at 122.
In spite of these holdings. Plaintiffs choose to ignore the interpretation which the Department of Institutions uses; However, as the Department of Institutions had promulgated rules and regulations under the Act for Care and Treatment of the Mentally 111 and the Community Mental Health Services Purchase Act, The Department's interpretation and enforcement of these rules and regulations must be given great weight. Yet, Plaintiffs persist in their own interpretation of the word "all" at Standard 2.1, 2C.C.R. 502-2, and Standard 2.4.1, 2C.C.R. 502-2, oblivious to the Department's interpretation. The word "all" is interpreted by the Department to incorporate, in a more succinct fashion, certain classes listed in Standard 5.1 of the "old" regulations, i.e., children, the elderly, etc., and that the word "all" connoted a non-discrimination basis (if a certain class, e.g., children, were not served, there would be a violation of the regulations.) It is not intended to mean all people in the catchment area (testimony o Mr.
Bartieson).
Likewise, treatment "in the ieast restrictive setting possible,"...is not construed by the Division to be a right to treatment but rather a treatment mode wmch is available


within the capacity and resources of the mentai heaith center involved. The word "possible" is interpreted to mean what is "doable," "practical," or "what's available." The capacity of any treatment program is one which is possible within its resources (testimony of Mr. Bartieson).
Plaintiffs then make the naked allegation that the Department of Health and Hospitals has failed to comply with the rules and regulations. Plaintiffs ascribe this assertion to no evidence. Indeed, they cannot, for tne evidence is overwhelming and uncontradicted to the contrary.
In sum, the Division's interpretation of their own rules and regulations is consistent with legislative intent. There is no statutory right to treatment recognized or enforced by the Division in the State of Colorado. The Plaintiffs have failed to show any violation of the ruies and regulations by Municipal Defendants.
There exists no constitutional right to treatment in the community.
Plaintiffs maintain that there exists a constitutional right to treatment which can be claimed not only by involuntary, committed patients in an institution but also by non-committed, voluntary persons. Plaintiffs ground theory upon the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution and the Eighth Amendment's "right to be free from harm" clause...(It is unclear, at this point, whether Plaintiffs are no longer using the Fifth Amendment as a constitutional basis for their claim or not. Municipal Defendants will nonetheless address that issue. Municipal Defendants will not, however, address the Eighth Amendment claim, since that claim has been dismissed Lbyj this Court....)
Plaintiffs' position herein ignores the clear and unmistakable constitutional analyses and findings of the United States Supreme Court, consistent throughout the years.
But the Equal Protection Clause Lof the Fourteenth Amendment) does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all ^EiaQdridge v. Williams, 397 U.S. 471,4bb,4a7,
SOS.Ct. 1153, 25 L.Ed.2d 431, 503 C1970J).
[T)his Court has never found that the involuntarily committed have a constitutional "right to treatment," much less the voluntarily committed. tW]e start from established principles. As a general matter, a State is under no constitutional duty to provide substantive services for those within its border. (Youngberg v_.
Romeo,___U.S.__, 102 S.Ct.__, 73 L.£d.2d 28,
38 [1S823...)


And even where a "iiberty" interest nas been recognized, the United States Supreme Court has held that such recognition does not carry with it the obligation of affirmative funding. In Roe v Wgde, 410 U.S. 113, S3 S.Ct. 70S, 35 t.Ed.2d 147 (1973), the Supreme Court recognized that the Due Process Clause of the Fourteenth Amendment included the freedom of personal choice in certain matters of family life, including whether or not to terminate a pregnancy. In Harris.*. supra, a challenge was made to a congressional act prohibiting the use of federal funds to reimburse the costs of certain abortions, the plaintiffs claim being based, inter glia, on the argument that the congressional act impinged on the Fifth Amendment right of a woman to decide whether to terminate a pregnancy, as recognized by Roe.*. supra, the Court stating:
Although the liberty protected by the Due Process Clause affords protection against unwarranted government interference with freedom of choice in the context of certain personal decisions, it does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom.
£I]t simply does not follow that a woman's freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices. ^Idi, 448 U.S. at 318,85 L.Ed.2d at 804).
Whether freedom of choice that is constitutionally protected warrants federal subsidization is a question for Congress to answer, not a matter of constitutional entitlement. (IcU, 448 U.S. at 318, 65 L.Ed.2d at 805).
It is patently clear, then, that no right to treatment in the community, such as Plaintiffs here desire, exists under either the Fifth or Fourteenth Amendment and that, should some kind of right to treatment in the community be recognized, which is doubtful, that right would be limited to involuntarily committed patients and, even in that situation, there would exist no obligation on the part of Defendants herein to affirmatively fund such services. As the Harris Court stated, that is a matter for the legislative branch... The Ggrrity Court, after reviewing the development of, ana cases pertaining to, these arguments, concluded, 522 F.Supp. at 239:
Contrary to plaintiffs' contentions, however, we find no statutory or constitutional basis for requiring that defendants provide habmta-
95


tion in the "least restrictive environment, and we herehy reject plaintitls' substantive due process claim to that effect.
*******
However, the fact that [New Hampshire had not chosen to provide community residential living arrangements for ail of its institutionalized residents] does not require a conclusion that the plaintiffs herein have sustained injury in the constitutional sense. In this regard, it is to be borne in mind that "the essence of federalism is that states must be free to develop a variety of solutions to problems and not be forced into a common, uniform mold." (Citing Addington y^ Texas, 441 U.S.418,431,
99 S.Ct. 1805, 60 L.Hd.2d 323, 324 11979]).
The United States Supreme Court cases cited by Plaintiffs, namely, QlCgnngr v. Dgngldsgn.and Addingtgn Texas*, sugra, do not stand for the propositions Plaintiffs assert. Addingtgn,,. sugra, addressed itself to standards of proof in a civil commitment proceeding, and, as such, did not tackle the "treatment" issue. O^Cgnngr*. sugra, has been misstated by Plaintiffs, who contend that QlCgnngr stands for the principle that due process requires treatment as the guid prg gug for the deprivation of liberty, that due process creates a "duty" to treat and that this duty" cannot be "expunged by the simple expedient of terminating the confinement and thrusting the patient onto the streets, unable to cope with a hostile environment or even to provide the minimum necessities of life". .-O^Cgringr says no such thing. Q^Cgnngr does say, 422 U.S. at 576, 45 L.Hd.2d at 407, that:
...a State cannot constitutionally coniine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.
Indeed, CTCgnngr seems to stand for the proposition that a nondangerous person who isn't adequate care or treatment (presuming that the "without more" in O^Connor refers to some modicum of care of treatment, although in light of Ygungberg^ sugra, it may only mean an interest to reasonably safe conditions, freedom from unreasonable hodliy restraints and such minimally adequate training as reasonably may be required by these interests) is entitled to be released. The affirmative obligation of creating programs nowhere in QlSgnnor- (it is not coincidental that the remedy of release provided in QlCgnngr is the same remedy provided by the Colorado Care and Treatment of the Mentally 111 Act...


State of Colorado cases cited by Plaintiffs, namely: Peogle Amgyg,42 Colo.App. 295, 532 P,2d l Jby (.Colo.App.
1979) ;Sisneros v^ District Court__Colo.___, e>Ot> P.2d OS
(1980); and Goedecke v. State Department, of institutions,
198 Colo.407,803 P.2d 123 (1979),also do not lend support to Plaintiffs' claim. Sisneros^ sugra,dealt with commitment proceedings and the strict adherence to the statutory standards in commitment proceedings. Goedecke.t supra, revolved around a medication issue. Comments made by the Sisneros and Goedecke Courts thus related to their respective areas o' concern, not to broad treatment issues. Amgyg, in briefly touching upon the 'voluntary" issue, was considering whether the case before it was moot or not, deciding that since 27-10-115 forebade discrimination against anyone who had received psychiatric services, voluntarily or involuntarily, the Court should not declare the case moot. This is a far cry from the proposition Plamtills advance. Amgyg did, o' course, address a treatment issue, stating that the best possible treatment decisions need not be made...
Lower federal court decisions cited by Plaintiffs...are of dubious value in the present case. Any requirements which these cases may have found and most of these cases were generated out of fact situations involving inpatient facilities, which were operating in grim, substandard conditions, leading the various courts to conclude that adequate treatment was not being provided, the provision of inadequate treatment which has not been proven in the instant case have not been approved by the United States Supreme Court. Reliance on these cases, given the fact that Plaintiffs are here proceeding not from an institutional setting alleged or proven to be inadequate and that the United States Supreme Court has not placed its imprimatur on these holdings, would be tenuous, at best.
Mental health services are available, accessible and provided in a non-aiscrlminatory manner.
The essence of the Plaintiffs' claim under Section 504 of the Rehabilitation Act of 1973...is the Municipal Defendants have unlawfully discriminated against the chronically mentally ill in the northwest catchment area. Plaintiffs' claim is that the Municipal Defendants have discriminated against chronically mentally ill persons by not taking into account the special needs of the chronically mentally ill. In contrast, Municipal Defendants have established that these persons are receiving a broad range of services. Chronically mentally ill persons can and do obtain a broad range of medical, psychiatric and psycho-social services while patients in the northwest catchment area.
Plaintiffs here seek to require Municipal and State Defendants to develop a comprehensive community based system of services for the chronically mentally ill to ensure the participation of low functioning patients who are not presently "otherwise quaiified" for existing programs. This is plainly beyond the scope of Section 504, as indicated by the controlling case law. Section 504 does not require a


state to mane substantial Boamcations m existing programs beyond those adjustments necessary to eliminate discrxmxnatxon agaxnst otherwise qualified individuals xn that, "neither the ianguage, purpose, nor history o£ S5G4 reveais an intent to xmpose an alixrmatxve obixgatxon on axi recipients of federal funds." Southeastern Community College Dgyxs, 442 U.S. 397, 30 L.td.2d 930, 9910.979).
Municipal ana State Defendants are not requxred under Section 504 to develop any specialized medical service for low functioning patients to enable them to participate in programs for which they may be eligible:
Plaintiffs cannot convert a statute prohibiting discrimination in certain governmental programs to a statute requiring, in essence, the setting up of governmental health care for people seeking to participate in such programs. (Tgtro y^ State of Texas, 431 F.Supp. 1224, 1223-29 LN.D.Tex. 19793).
The import of Plaintiffs' cited decision of Lgu v. Nichols, 414 U.S.563, 94 S.Ct. 78b, 39 C.Ed.2d 1 (1974) is not understood... The decision deals with a SbOl discrimination claim. Section 504 is not mentioned in the case. The Plaintiffs have not proved that Municipal or State Defendants have excluded "otherwise qualified" chronically mentally ill from existing community programs solely on tne basis of their handicapping conditions. Indeed, the evidence is that the Municipal Defendants provide eligible patients with existing services which are sufficient and appropriate to meet individual needs.
Plaintiffs argue tGBKAJ is a non-discrlmmation act. As mentioned previously, the Act is a funding statute and it declares no enforceable rights. The Act sets targets, not mandated standards.
Plaintiffs, in proposing the rules and regulations o the Colorado Department of Institutions as a oasis for a nondiscrimination standard and in attacking the availability and accessibility of services provided by the Department o
Health and Hospitals, again choose to ignore the Department's interpretation of its own rules and regulations (testimony of Mr. Bartleson Division of Mental Health does not require transportation to and from services; "accessibility" refers to things such as hours of operation, linguistic ana cultural characteristics and architectural accessibility, not locale ger §e). Plaintiffs also choose to ignore services available throughout the entire Health and Hospitals system at a variety of locations.
Plaintiffs' argument that potential patients may have varied and complex needs which cannot be adequately met at present time has not been shown and, even if it were, it simply cannot be transferred into a claim of unlawful discrimination on the basis of a handicap.
CIn3 conclusion. Plaintiffs have utterly failed to prove


that any of the named Plaintiffs, as representatives of the entire, alleged class of chronically mentally ill persons, have not or are not now receiving adequate treatment.
Indeed, the treatment records of the named Plaintiffs show that they have received and continue to receive a wide variety of services throughout the years, not. only from the Department of Health and Hospitals system out from other sources as well. That the Plaintiffs may not oe "cured" is a function of their illness, not an indication of inadequate treatment.
Municipal Defendants believe that, due to the fact that Plaintiffs have failed in their burden of providing inadequate treatment, this Court need not address the various statutory and constitutional bases which Plaintiffs maintain create a right to the creation of programs for ail chronically mentally persons, be they institutionalized or not, be they involuntarily committed or not. In the event the Court does consider these bases. Municipal Defendants believe that neither federal nor state statutes, rules and regulations or constitutions create the rights sought by Plaintiff's. Municipal Defendants have herein discussed these various bases and, although moat of the case law and federal statutes deal with alleged state obligations, those analyses apply with equal force to a community mental health center such as the community mental health center operated by the Department of Health and Hospitals.
Municipal Defendants believe that the evidence has shown that the Department of Health and Hospitals, both in its entirety and through the operation of a community mental health center by its Mental Health Program, provides high quality, comprehensive services to all its clients, including the chronically mentally ill. The law requires no more.